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I would have your neighbor bear the expenses of transferring that piece of property from you to him. I wouldn't make it an easement, I would just "sell" that little strip of land and have them do whatever legalities are necessary for the legal plots to reflect the reality of where the boundaries are based on the existing fence/retaining wall. When you go to sell, it will be a non-issue whereas you might lose some buyers who are put off by an easement and don't want to deal with it.
I would have your neighbor bear the expenses of transferring that piece of property from you to him. I wouldn't make it an easement, I would just "sell" that little strip of land and have them do whatever legalities are necessary for the legal plots to reflect the reality of where the boundaries are based on the existing fence/retaining wall. When you go to sell, it will be a non-issue whereas you might lose some buyers who are put off by an easement and don't want to deal with it.
I agree. I think a fee transfer is preferable to an easement.
Where I live we often get the boundary survey before the markers are put down. There is a higher fee for the markers and the title company will wait for verification from the buyer that they want the markers and extra fee ($200-$250).
If you had received enhanced title insurance you probably would ave been covered since it goes to the past and to the future.
That being said, I don't know if you want to make an enemy of your neighbor (which would happen if you force them to move the fence). I would sell them the portion of the property, have them pay for the additional survey shopping off that part. You will also probably need a new tax id which a real estate attorney can help you with.
In my opinion, the attorney hired the wrong surveyor and went to far out on a limb stating everything looked fine. I might have him help the neighbor with the cost.
Just because the lawyer told you that you can't make a claim against the title company or surveyor does not mean he is correct, in fact he could just be trying to cover his own butt because he recommended them. There is absolutely no reason the survey did not illustrate both the old chain link fence and the new wall and fence. Not showing them on the date the survey was certified is either negligence or fraud. You are not responsible for either but will be if you don't get the situation clarified.
I agree with those who suggest the best solution is to sell a strip of land to the neighbor and let him cover the expenses of the sale as he is ultimately responsible for the error. I'd also get enough to take a week off in a warm place and look at palm trees instead of his plastic fence.
You have many options... from do nothing to making the case for removal.
If you had a do-over would you not have closed?
Had something similar in my neighborhood.... the parties agreed to a lot line adjustment with a land swap at no cost to the encroached party... which also picked up a few additional square feet.
You're chasing at windmills. The neighbor was the party that encroached upon the property when they did the project. They failed to properly identify boundaries, property lines or anything. They made the classic mistake of using some physical items as if it was the boundary. They and only they have full responsibility for the encroachment. They encroached before you even decided to buy the land so how would anyone be responsible for the act they knew nothing about?
Your surveyor and attorney may have some financial liability if you end up suffering financial harm due to this encroachment. You still own the land! You can still use your land! You can remove the encroachment from your land! It would come down to how much will it cost you financially to resolve this issue now versus how much would it had cost you to resolve it prior to the purchase.
You are mixing the encroachment up with professional liability. Two completely separate things.
Prior to closing I was not the owner of the house, hence I was not financially responsible to resolve this problem. Sellers would have had to resolve this and depending how we would have negotiated this issue prior to closing, we had the option of walking away, so I couldn't say with any degree of certainty how it would have played out.
I don't feel I am mixing encroachment with professional liability, I paid a Real Estate Attorney and Surveying company for these services and they failed to deliver. I should not have to face this burden after closing because of their neglience and incompetence. But that is water under the bridge now.
If it was me, I'd just let the issue go. Let your neighbor know that unfortunately you now will own the vinyl fence (if it is fully on your land) but that you do not intend to do anything about it. Years ago an in town neighbor of mine built his garage slightly crookedly such that a corner ended on my property. My solution was to exchange a few square feet of land with him. It is easy to do legally since you are just shifting a property line. If you have no easy way to exchange those square feet of property, then another thing you can do is grant him permission to use "your" fence (the vinyl one). Have him sign a document that he realizes that the fence is on your property and that you have granted him this permission. Yes, an attorney can help you write this letter, but it should not be too big of a deal.
This would be one way to settle this, but we don't want to own that plastic fence/retaining wall. We have much to think about. Thanks for the response.
I don't understand how they could have done a survey and noted the fence to be on the property line. I, too, agree that the corners should have been marked at the time of survey. It sounds like they may not have done an on-the-ground survey, but merely drew one up from the legal description, using some program. Who knows?
Since it doesn't change what you thought you were buying (given the fence), you might be best off either transferring the land, or granting an easement...coupled with some form of payment to you. Who would pay would be the issue. Both the surveyor and attorney--and the neighbor--bear some responsibility.
I appreciate your response, my questions exactly. How does one go about calculating a form of payment for this?
Dont underestimate the cost of the legal issues to moving the lot line. A new survey, lawyers, filing fees, town approval, both mortgage companies will need to approve, etc. If you dont do this the right way, it could be a huge issue when selling.... someday.
In the end..........It might actually be cheaper to move the fence.
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