Property Survey Issue

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ggrmv722
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Property Survey Issue

Post by ggrmv722 »

I am in contract to purchase a house and there was an issue that came out of the survey. My neighbor has an out of possession fence that is 2 feet past their property line onto mine. My attorney asked the sellers attorney to seek an affidavit, however the attorney hasn’t responded and my attorney won’t follow up. Is this an issue that I should ensure gets resolved? Not sure what I can do besides following up with the sellers attorney myself.
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Sandtrap
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Re: Property Survey Issue

Post by Sandtrap »

ggrmv722 wrote: Tue Jan 25, 2022 7:39 am I am in contract to purchase a house and there was an issue that came out of the survey. My neighbor has an out of possession fence that is 2 feet past their property line onto mine. My attorney asked the sellers attorney to seek an affidavit, however the attorney hasn’t responded and my attorney won’t follow up. Is this an issue that I should ensure gets resolved? Not sure what I can do besides following up with the sellers attorney myself.
This is a potential huge issue for the future.
Why won’t your attorney follow up?
Get an attorney that will work for you.
Work with the realtor to resolve this.

What is “contract to purchase a house?
Signed and accepted DROA with deposit?
In escrow?
What contingencies?
Etc?

Possible future issues:
Neighbor claims fence and property use is grandfathered in.
You want fence moved neighbor says no
You want to paint or repair fence neighbor says no
Neighbor treats the fence and land as his own and you give in.
Neighbor issue from right now to as long as you live there.
Neighbor is great and acknowledges property line and says do what you want with the fence at your expense and you pay $$$$$$$$$ to have it moved or taken dow and put up a new one in the correct location.

Optional action with attorney approval.
Visit the neighbor while bringing a hot apple pie from Costco and talk it over.

Seek legal counsel. Another one.
J🌺
Last edited by Sandtrap on Tue Jan 25, 2022 8:22 am, edited 1 time in total.
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Jack FFR1846
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Re: Property Survey Issue

Post by Jack FFR1846 »

Ask your attorney if:

1) You can back out of the deal because of this.

2) If upon move in, you can tear down or move this fence to the property line or to wherever is allowed. I know some cities/towns allow a fence on the property line and some require a setback (my town does) from the property line.

I would think that if nothing else, you'd want some permanent steel poles or concrete markers put in place to well mark the border.
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surveyor
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Re: Property Survey Issue

Post by surveyor »

What would be the purpose or even the type of affidavit? The survey says it is encroaching. If you're relying on a mortgage survey, don't. If it is a stakes in the ground survey the neighbor at this point will have seen it. At worse, your title insurance will except it from the policy. Personally, I would disregard the issue for the house purchase unless the lot or property was very small or in an area with valuable land. Once purchased I would approach the neighbors and see if they had a survey with a different opinion of where the property line is. If they built the fence without a survey I would grant them an easement allowing the current fence to stay in place for a)certain amount of time, b)sale of their property, c)it fell into disrepair in your opinion, d)was being replaced. Now that you know about it the important factor is to acknowledge it and find a solution.
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deanbrew
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Re: Property Survey Issue

Post by deanbrew »

I tend to agree with surveyor's post. How big is your property, and how far from your house is the fence? I bought a 2 acre property three years ago, and the survey revealed that one neighbor's fence is mostly on my property, by as much as a foot. But it's far away from my house, and concerns me very little.

When I saw the neighbor walking in his back yard, I went over and introduced myself and noted the survey markers. I told him that while his fence is partly on my property, I have no problem with it remaining as it is until or if he needs to replace it. Certainly not an issue I want to spend money on legal fees to address, and even less of an issue to make me change my mind about purchasing the property.
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Tru Blu
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Re: Property Survey Issue

Post by Tru Blu »

Depending on how long the fence has been there it may be that your "neighbor" has acquired title to the encroached area by reason of a legal doctrine known as adverse possession. Talk to your attorney.
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snackdog
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Re: Property Survey Issue

Post by snackdog »

I would stipulate the sellers to arrange to have the fence relocated to the property line before closing.
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testing321
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Re: Property Survey Issue

Post by testing321 »

Tru Blu wrote: Tue Jan 25, 2022 9:03 am Depending on how long the fence has been there it may be that your "neighbor" has acquired title to the encroached area by reason of a legal doctrine known as adverse possession. Talk to your attorney.
Yes, google "adverse possession your state".
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Re: Property Survey Issue

Post by Mr. Rumples »

This can get very nasty very fast. Others might disagree. If it was a simple issue, it could have been resolved before the property came up for sale.

I would have the fence removed, or that sliver of land sold to the person who put up the fence before closing. After closing, the fence is yours; take it down before they put up a new fence and get pit bulls.
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Watty
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Re: Property Survey Issue

Post by Watty »

Even if you "win"(whatever that is) you can end up being on bad terms with your new neighbor. I have seen neighborhood feuds over fences and property lines and people can be real petty. The situation I saw quickly went from being about a fence to ongoing bad relations.

If you are not Ok with where the fence is and they are not getting it moved without you having to get involved then get out of the purchase. There is a saying, "not my circus, not my monkeys". You do not want it to be your problem.

If you notify the seller that you are backing out of the sale because of this then there is a good chance that the seller will figure out a way to get the fence situation resolved without you being involved.

The problem is that they will need to disclose the known property line problem to any other future buyer.

A couple of other factors to consider;

1) You need to find out if your mortgage lender will be OK with granting you a mortgage when there is a known property line dispute.

2) If you lose that strip of land through "adverse possession"(Google this) then that could cause future problem like;
a) There is a required ten foot setback, but with the new property line your house now only has an 8 foot setback.
b) If you ever need to rebuild the house you may not be able to. For example if your house burns down and you need to get a building permit to rebuild then there might be a minimum lot size like a quarter of an acre. If your lot without that strip of land is only .24 acre then you may not be be able to get a building permit.

3) There is a chance that your survey could be incorrect. A lot of land layouts were not very accurate, especially 50+ years ago and the survey might show one result when they start from one starting point, but different when the surveyor starts from a different starting point.

4) If you have locked in a good mortgage rate and it takes you two months to find a different house to buy then mortgage rates could be higher then.
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Re: Property Survey Issue

Post by surveyor »

Adverse possession is rare, but people sure love to talk about it. Open, notorious and a time-frame - all state dependent. Platted land and taxes can also be factors. Again, rare and expensive in most cases. I've seen it once in 25 years and that was against an abandoned railroad that had no interest in defending their title. I would worry more about a prescriptive easement, which is why I suggested granting an easement on your terms and move on. I'm sure there are other things about the house you don't like, just add this to the list.
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Re: Property Survey Issue

Post by bsteiner »

surveyor wrote: Tue Jan 25, 2022 9:37 am Adverse possession is rare, but people sure love to talk about it. Open, notorious and a time-frame - all state dependent. Platted land and taxes can also be factors. Again, rare and expensive in most cases. I've seen it once in 25 years and that was against an abandoned railroad that had no interest in defending their title. I would worry more about a prescriptive easement, which is why I suggested granting an easement on your terms and move on. I'm sure there are other things about the house you don't like, just add this to the list.
I thought adverse possession only happened in law school until a client was a party to a lawsuit involving adverse possession.

Then again I thought partition only happened in law school until two clients brought partition suits in recent years.
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Re: Property Survey Issue

Post by Zeno »

surveyor wrote: Tue Jan 25, 2022 9:37 am Adverse possession is rare, but people sure love to talk about it. Open, notorious and a time-frame - all state dependent. Platted land and taxes can also be factors. Again, rare and expensive in most cases. I've seen it once in 25 years and that was against an abandoned railroad that had no interest in defending their title. I would worry more about a prescriptive easement, which is why I suggested granting an easement on your terms and move on. I'm sure there are other things about the house you don't like, just add this to the list.
That's very interesting. We once purchased circa 65 acres of undeveloped, partially timbered, mountainous land in a rural area. Halfway up the steep slopes was a flat "shelf" that snaked around and through the property; the shelf was clearly old and manmade, and was either a very old dirt road (or timber access road) or railroad bed. So it was a curious geographic feature that we wanted to get to the bottom of as part of due diligence. A title search revealed that a long-since defunct narrow-gauge railroad (the "Bee Tree Lumber Company and Railroad," to be precise: https://www.carolana.com/NC/Transportat ... lroads.htm) had been granted an easement to the land in about 1910 to haul out timber. So our purchase was delayed as we had to hire a lawyer to do a quiet title action.

Fortunately and not surprisingly, no descendants or interests of the Bee Tree Lumber Company and Railroad responded to the advertisement we placed in the local newspaper in the closest rural town, so the easement was extinguished. It was also interesting that no prior owners of the land -- going back for more than a century -- had gone to the effort of executing a quiet title action. Me? I was worried that small shelf was going to be exploited by some clever real estate developer and converted into a major highway cutting through the property, or perhaps an access road or driveway for a future third-party homesite deeper in the forest.

More recently, a survey we conducted prior to purchasing our current home (built in circa 1888 in a rural area) revealed that a neighbor, through a concrete slab, had long-since encroached on what was soon to be our lot. We spoke with the neighbor before purchasing the land; they didn't seem litigious. So shortly after we purchased the land we ran a proper fence consistent with the stakes and survey (and in compliance with all setback requirements). That fence runs across the neighbor's encroaching concrete slab so I sleep better at night knowing that all boundaries are lawful and accurate.
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Re: Property Survey Issue

Post by T4REngineer »

What does your potential new neighbor say?
Silk McCue
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Re: Property Survey Issue

Post by Silk McCue »

T4REngineer wrote: Tue Jan 25, 2022 11:44 am What does your potential new neighbor say?
I would not engage with the potential new neighbor on this issue at least until more clarity is provided through the current process being pursued. More potential downside drama by doing that too soon IMHO.

Cheers
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Re: Property Survey Issue

Post by LadyGeek »

HeelaMonster has a question which I've moved into a new thread. See: [Want to extend our driveway - Do we need an easement?]

(Thanks to the member who reported the post and explained what's wrong.)
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HeelaMonster
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Re: Property Survey Issue

Post by HeelaMonster »

LadyGeek wrote: Tue Jan 25, 2022 12:22 pm HeelaMonster has a question which I've moved into a new thread. See: [Want to extend our driveway - Do we need an easement?]

(Thanks to the member who reported the post and explained what's wrong.)
My apologies!
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Tamarind
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Re: Property Survey Issue

Post by Tamarind »

Silk McCue wrote: Tue Jan 25, 2022 12:04 pm
T4REngineer wrote: Tue Jan 25, 2022 11:44 am What does your potential new neighbor say?
I would not engage with the potential new neighbor on this issue at least until more clarity is provided through the current process being pursued. More potential downside drama by doing that too soon IMHO.

Cheers
I'm curious about this point. My state, AFAIK, requires that someone trying to seize property via adverse possession must openly hold out that they own it. Would a written admission from the neighbor that they don't consider the property theirs not mitigate that risk?

My (friendly) neighbor has a fence remnant that encroaches on my property up to 6 ft. A fencer got angle of the property line wrong before either of us bought our properties. The fence section helps contain their dogs and it would be a huge pain to take it down would replacement. We are neither of us litigious, nor intending to sell. I had a couple chats with them verbally to take temperature on the situation, then sent an email informing them that when I next replaced my fence I would do so along the correct property line and would take down the encroaching feature at that time. They replied agreeing and we've left it at that ever since.
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Re: Property Survey Issue

Post by humblecoder »

When we were living in NJ, we had a house on a 50' x 100' lot. The survey showed that the actually property lines were slightly different than the various bordering structures. On one side, there was a fence along the length of the back yard which connected to our neighbor's detached garage. It turned out that some of our neighbor's land was "my side" of the fence and garage. Likewise our neighbor behind us had a garage along the back of our back yard. However, some of the land on "my side" of that garage was also belonging to our neighbor behind us. Then on the other side of us, there was a fence which ran slightly diagonal which connected to our garage. Part of that fence was on our neighbor's yard and part was on my yard.

Not sure if all this was a result of the survey being bad, or that, over the years, stuff happens. Either way, none of my neighbors brought it up. I doubt they even knew. It all worked out.
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JoeRetire
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Re: Property Survey Issue

Post by JoeRetire »

ggrmv722 wrote: Tue Jan 25, 2022 7:39 amMy neighbor has an out of possession fence that is 2 feet past their property line onto mine.
If the 2 feet bother you, then require the seller to correct the situation before you will purchase the property.
If the seller refuses, then walk away from the purchase.
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ggrmv722
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Re: Property Survey Issue

Post by ggrmv722 »

For context, the rear border of the property is where this issue occurs. The rear neighbors fence is 2 feet on my side of the property. The property is roughly 70 feet wide by 110 feet in length. The 2 feet doesn’t bother me at all, especially considering we are in a sellers market. It took months of having multiple offers above asking turned down before getting this house. This house is in a great location and the seller can easily get at least $25K more than they agreed to sell it to me for. I am just frustrated that my attorney hasn’t followed up, the seller has been very accommodating and would definitely be willing to seek the affidavit for me. However I do not want to lose this house and assume that I can always seek the affidavit after closing.
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JoeRetire
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Re: Property Survey Issue

Post by JoeRetire »

ggrmv722 wrote: Tue Jan 25, 2022 1:45 pmThe 2 feet doesn’t bother me at all
Then just ignore it and pretend the 2 feet are owned by the neighbor.
I am just frustrated that my attorney hasn’t followed up
Ask your attorney why they won't follow up. If you aren't happy with their answer, find a new attorney.
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testing321
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Re: Property Survey Issue

Post by testing321 »

ggrmv722 wrote: Tue Jan 25, 2022 1:45 pm For context, the rear border of the property is where this issue occurs. The rear neighbors fence is 2 feet on my side of the property. The property is roughly 70 feet wide by 110 feet in length. The 2 feet doesn’t bother me at all, especially considering we are in a sellers market. It took months of having multiple offers above asking turned down before getting this house. This house is in a great location and the seller can easily get at least $25K more than they agreed to sell it to me for. I am just frustrated that my attorney hasn’t followed up, the seller has been very accommodating and would definitely be willing to seek the affidavit for me. However I do not want to lose this house and assume that I can always seek the affidavit after closing.
Then go for it. Just acknowledge that you will have to disclose this issue when you sell (maybe many decades from now) and this might be an issue because your neighbor could say he now owns your property that is behind the fence and this will probably have to be resolved before you sell.

If I was your neighbor, I would say this fence has been the accepted boundary for decades and I am not ceding an inch.
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