We are thinking of selling our house. I was looking at the real estate contract between me and the previous owner from when I bought the house 15 years ago. In the section where you indicate any know issues such as standing water, border disputes, etc., it indicates that the next-door neighbor’s fence is partially on their property (the party I was buying the house from). This was never backed up by a survey that I know of. The neighbor with the fence, denies there is any property line issue. The solutions suggested in the contract were
Have the neighbor move the fence
Obtain an endorsement in writing
Do nothing
so, my question is what is an endorsement (in this context)?
I really don’t want to get a survey as this is usually done by the buyers. Besides, if I get a survey and it shows the neighbors fence is on my property then I have to declare it on the listing agreement. Since I have never been provided proof of this, I don’t have to declare it.
Not so in most cases. In places where surveys are common in RE transactions, the Seller usually pays for an “as-built” drawing and physically locating corners.
As a Seller, t’s part of proving you have marketable title to prospective Buyers.
I’m not a lawyer and this is not legal advice… but:
In my opinion, as an ex-RE Broker, the word “endorsement,” in the context of being inserted into your RE sales contract by a principle or agent means next to nothing. The word leans on the standing of the individual giving the endorsement. There appears to be no reference or indication of who that might be.
Your problem appears to be a result of less than effective representation of you as a Buyer when you bought the property. My advice is to get a licensed surveyor to mark the lot line and provide you with a written document showing and describing his findings.
Added: Alternatively, if your Buyer is willing, you can have them sign a disclosure stating that they are aware of the discrepancy and accept the property “as is” with knowledge of the potential defect.
If I have a survey done and it yields that the fence is on my property, isn’t there a way I can just sign that section of property over to him. That seems like an easier, probably cheaper way to go than forcing them to move the fence. If the fence turns out to be on my property, it’s by a very small amount, I’m sure.
These people (my neighbors) are very difficult and are surely going to throw up obstacles to this and cause me a lot of effort.
If the fence ends up being on your property, isn’t it your fence? Why would it have to be moved if you don’t mind it being there? If you and the neighbor both want the fence there, why would anyone care which side of the property line it’s on?
If you do a survey, and find out the fence is on your property, you can do a lot line adjustment. Maybe your city or county has paperwork for this purpose. Your difficult neighbors might not like this idea.
If you believe the fence encroaches on your property, you can, without any survey, give your neighbors a letter of permission, allowing their fence to be on what you think is your property, until it comes time to replace it and then you expect them to do a proper survey and locate it correctly. Doing this establishes you as the owner of the land and them as the owner of the fence.
If you truly have no idea where the property line is, and don’t mind the fence being where it is, you could just “Do nothing.”
Changing a lot line will probably require a replat. That’s more expensive than just having your lot line marked by a surveyor.
Your problem is that you suspect that you have an encroachment by your neighbor on your property you are thinking of selling. That encroachment is a defect in the property that you are probably required by law to disclose to a buyer.
You can disclose the defect up front and hope the Buyer will accept it by acknowledging notice as a condition of the sale, like you did. That option could result in a lower offer from the Buyer. Or you can cure the defect, it’s your choice, but what seems like a little thing to you could morph into a deal breaker in the middle of a transaction.
If your state laws or local custom is for the Seller to provide a title report, go to the one you would use and share the situation with them, they will have a staff attorney or one on retainer.
It depends. I had encroachment problems at my first house, and the city I lived in had a simple form for people who wanted to do lot line adjustments. It was pretty common, apparently, given errors in surveys, improvements in surveying equipment in the decades since original plats and landowners’ desired changes. If I recall, the costs would have been $150 to file the paperwork plus the survey for the new line.
You might find exceptions but:…
It will likely cost more for a surveyor to provide the documentation to accompany a filing with your city than it will to just mark the corners of your lot. I don’t think the city will accept the word of someone not a recognized surveyor, they will insist on documentation from the surveyor, that’s an added cost.
Are you sure the $150 you refer to isn’t just a filing fee? A drawing of a lot showing new lot lines and recorded with the local land titling authority is the definition of a replat.
Moving a lot line can vary widely in total cost. In some places it requires huge fees and professional costs that can amount to thousands of dollars.
Having a surveyor simply mark the corners and hand you a bill will most likely be the cheapest. Getting a plat drawing of your lot from the local county or city authority is usually free or pretty cheap. Having a new plat drawing is going to cost in the hundreds and if changes to the lot line are made, all bets are off. In some places it could cost well in excess of $10,000.
You are correct, a disputed property line would be a defect. But easements are typically recorded with the local county recorder’s office. If you grant an easement without a survey the whole thing is up to question as to where the fence is located and why the easement was granted in the first place. And the guy who put the fence on your property could argue that by granting him the easement he now has the right to relocate it where he feels the fence should go. He might decide to move it over on your property even further.
I’ve seen people spend thousands of dollars in court fighting over unrecorded easements, ask any escrow officer if they think granting an easement without a survey is a good idea. I doubt you could get it recorded without a survey to describe what you are recording.
That leaves the option of granting an easement and doing the survey. Then your paying to appease the knot-head neighbor who caused the problem in the first place twice. You’re reducing the market value of your property AND paying for a survey too boot.