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I appreciate the response as I was looking for a response from those with similar experiences. No easement recorded. No permits pulled by contractor. I gather this can be best answered by an attorney.
When you buy property you buy the problems as well as the assets. Make the neighbor pay for a boundary line adjustment and a little extra to reimburse you for the aggravation. Problem solved.
Check schedule B of your title policy as to whether it takes exception to the survey The ALTA 9 form deals with matters of survey. Then schedule an appointment with a real estate attorney to discuss.
Thanks, the closing attorney is a real estate attorney, one that we've used several times in the past with a good reputation. He said that my title insurance would not cover this issue, it seems we will have to find and consult with another one.
This situation doesn't make any sense to me. Why in the world wouldn't the surveyor mark the property when he was there for the survey? I have never heard of anyone going back and putting in the stakes.
Do you actually have a copy of the survey? What is the date on it? The survey should show an outline of the house and where the fence is and all encroachments and easements.
The whole thing sounds really weird to me.
This too does not make sense to me as well. I am waiting for the closing attorney to call me back since Jan. 19, to clarify this mess. In the interim I spoke to my realtor last week, he also said he'd get in touch with closing attorney, realtor said this was a problem, but that it will get solved. My question is: how'd we get here and who is responsible? We're on a wait and see mode.
I do have a copy of the survey with the outline/sketch and notes, it doesn't say anything about encroachments/easements. It shows where corner markers are to be placed, notes fence on property line, lot dimensions/setbacks and notations that look like long./lat. on four sides of page.
We closed on Nov. 23, date on boundary survey is Nov. 9, attorney emailed survey to me on Nov. 11, and stated everything was fine with the survey. Corner markers placed on property Jan. 7, which is when encroachment was discovered, go figure.
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.
When you buy property you buy the problems as well as the assets. Make the neighbor pay for a boundary line adjustment and a little extra to reimburse you for the aggravation. Problem solved.
I understand. Although the neighbor bears some responsibility, I would think the surveyor and/or closing attorney would be at fault here.
Neighbors are a very nice couple with two children. This was an estate sale and we are not living in the house yet, as we are upgrading, fixing things and still need to paint and finish wood floors, so yesterday when we went to the house to remove the snow, we found that our neighbors had plowed the driveway for us. Last thing we want to is be in bad terms with our neighbors.
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.
Thank you for the input, good ideas. Thing is that I don't want to own that fence because a retaining wall with backfill is underneath it and when or if the retaining wall fails I don't want to be the one to fix it. In addition, I am not certain that there may be a drainage problem as well. <sigh>
Attorney suggested an easement or make neighbors move it, the latter is an expensive and unfriendly proposition that would involve the courts, I don't want to go that route. My realtor suggested selling the neighbor the land and/or have them pay us to use it.
I've thought of an easement agreement with conditions. I will have a consultation with another local real estate attorney this week and see what are my best options for this situation.
Well, he cant just let the issue go. Someday he will want to sell the property and this legal issue could hold up the sale. Might as well deal with it sooner, than later.
As for the previous survey that was performed 12 days before the sale.... sounds fishy. Doesn't sound like they did a survey at all. At minimum, they usually use wood stakes, spray paint..... something.
I understand. Although the neighbor bears some responsibility, I would think the surveyor and/or closing attorney would be at fault here. (
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.
This too does not make sense to me as well. I am waiting for the closing attorney to call me back since Jan. 19, to clarify this mess. In the interim I spoke to my realtor last week, he also said he'd get in touch with closing attorney, realtor said this was a problem, but that it will get solved. My question is: how'd we get here and who is responsible? We're on a wait and see mode.
I do have a copy of the survey with the outline/sketch and notes, it doesn't say anything about encroachments/easements. It shows where corner markers are to be placed, notes fence on property line, lot dimensions/setbacks and notations that look like long./lat. on four sides of page.
We closed on Nov. 23, date on boundary survey is Nov. 9, attorney emailed survey to me on Nov. 11, and stated everything was fine with the survey. Corner markers placed on property Jan. 7, which is when encroachment was discovered, go figure.
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.
Thank you for the input, good ideas. Thing is that I don't want to own that fence because a retaining wall with backfill is underneath it and when or if the retaining wall fails I don't want to be the one to fix it. In addition, I am not certain that there may be a drainage problem as well. <sigh>
Attorney suggested an easement or make neighbors move it, the latter is an expensive and unfriendly proposition that would involve the courts, I don't want to go that route. My realtor suggested selling the neighbor the land and/or have them pay us to use it.
I've thought of an easement agreement with conditions. I will have a consultation with another local real estate attorney this week and see what are my best options for this situation.
Bottom line is what do you want?
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