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encroachment question

Posted by blueberry-2007 (My Page) on
Sat, Jul 28, 07 at 2:10

Hello, I have read about some of the hostile neighbors and the encroachment issues. My issues are not due to any hostility or maliciousness from neighbors. We have gotten along very well. My house is on the market. I was not required to have a survey when I bought the house. I knew that my neighbor's carport was over my property line possibly by as much as 8 feet. The carport has been there for over 30 years. Another consideration is that some of my property may encroach on another neighbor. This building and garden has been there at least 22 years.

Is it worth trying to correct this for the new buyers? Does my neighbor with the garage now own the property that was encroached since the encroachment is now 33 years old? And do I now own the property that I encroached on since it has been that way for at least 22 years.

I must decide if I am going to put money and time into a survey that is not required and any resulting attorneys to make what ever corrections can be made. But none of that makes sence if the issue is resolved because the encroachments are so old.

Would the property be "grandfathered" in?

Thx.

Thx.


Follow-Up Postings:

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RE: encroachment question

Hi, it's not your place to worry about it now - the new owners should be paying for their own survey to be done, which is how it normally works, and they'll find out what's what. The situation is pretty common, BTW, and if you talk to your agent about it, she can always explain it to prospective buyers who should also not be surprised, and it'll be up to them to bother with a survey or not. It's not as if you're deliberately hiding a major loss of land from them, and these things happen all the time.


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RE: encroachment question

This happened to a neighbor and when he sold the land he had the buyers sign a note that they were aware of the corner of the land was being used by someone else.


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RE: encroachment question

In the case of the original post on this thread, the potential buyers might get very uneasy about this situation. If one of the adjoining owners sells or dies, the succeeding owner(s) almost certainly will not pleasant to deal with in this matter. I speak from multiple experience. If all involved at present are friendly, a surveyor and the parties involved can establish an agreeable boundary line accommodating all the construction and record a "boundary agreement" describing that new boundary. Consult with an attorney about this first. Do it now!


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RE: encroachment question

bus driver: Consult with an attorney about this first. Do it now!

Excellent advice. There are different types of agreements that can address such issues...however only an attorney can provide meaningful advice....and not the RE agent..unless they are also an attorney at law.

Chances are very strong that this will be found via a survey..as most lenders require them now..and it will have to be straightened out before title can change hands. Best to do so now..and present clear title to the buyer, instead of having a big mess to handle at the 11th hour.


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RE: encroachment question

When we bought our first house & had it surveyed we discovered that the living room of the house was 6' into the County's road right of way. It was a 1910 house with a big front yard in a rural unincorporated town. The owner had to go to County Commissioners Court & get them to give the land to him. It was a time consuming pain, held up the closing a bit & I have no idea what it cost the sellers, but they did it. Otherwise our lender would not have loaned on it.

The interesting part was that the old right of way was so wide because it allowed horses pulling wagons to turn around!


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RE: encroachment question

My advice offered earlier applies even if no one has any plans to sell. Get the matter properly settled immediately while all involved are on good terms. About 10 years ago, I had to sue to correct a problem that started in 1923 when a road was relocated. One man owned both sides of the road at that time. No problem. He sold one side to his son. No problem. The son sold his about 1939 to a cousin. No problem. The original divided his remaining property in 1946 among two other sons and retained a life estate for himself. No problem. The original owner died about 1954. Problems began. I bought part of it in 1972. No records showed a problem. But one soon appeared. The suit was settled in my favor. My attorney is $2700 richer from my pocket. Deal with it peaceably NOW!


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RE: encroachment question

Hello, All,

Thank you for your responces. I did finally get ahold of an attorney and learn more about this. The property is under what is locally called "legally nonconforming." That means, I am told, that I cannot force the neighbor to correct the problem, nor can I be forced to correct the part that I may be encroaching on. However, if something ever happens to the carport, (or conversely - my garden) and it becomes unusable, then the neighbor must get my permission to put it back up... and/or to replace the driveway. The alternative is to sell the neighbor that little bit of land, redraw the property lines, and then I would have to get all the approvals from the village, zoning, etc., etc. Doing that means that I no more own that part of my lot. In any event, I am having the survey done and will disclose to any buyers. They can decide if they want to make an issue out of it. If I can't force a correction in the property lines, only two alternatives are left. Live with it, or redraw the property lines and loose land. This should have been explained to me when I bought. However, I would have bought anyway, because I really like my house.

Thanks again!


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RE: encroachment question

You might ask about a lot line adjustment, you would trade the same amount of land with the neighbor allowing each of you to retain the the same lot size but just redefining the boundaries equally. And do it on both sides. There is no cost for land acquisition and no change in lot size. Just the survey and lawyers/title fee.


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RE: encroachment question

I have sold several properties with issues like the above and have never had an issue, although none have been as much as an 8' encroachment. Most of the time its been fences that were not 100% on one property or the other. The only thing I recall being done was the lawyer having the buyers sign a document noting the encroachments. I don't recall in any case the lender not willing to lend, but I suppose there may be a limit where they will take issue with the encroachment.


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