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Encroachment recovery of damages

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L

leguleian

Guest
What is the name of your state? Massachusetts

Based on my previous posted, it looks like I am potentially getting involved in an ugly and expensive litigation suit regarding an encroachment to my land which cannot easily be removed.

If I win this case, am I entitled to recover damages? These damages consist of: attorney's fees, surveryor's fees, out of work time, cosmetic damage to the land, court costs, etc. In addition to this, I have substatial ill-will created with my neighbor which is perhaps worth more than all other factors combined.

Also, there are other factors concerning this case which really bother me.

When I initially purchased the home, I hired both a surveyor and real estate attorney. I paid good $$$ for these services. My real estate attorney failed to advise me properly. After the boundary dispute emerged 1.5 years after purchase, she said that the survey that was done was a "tape survey". This type of survey failed to identify the encroachment. A tape survey does not involve instrumentation, only a tape, according to the attorney. I was not aware of this. Is this industry practice? Quite frankly, I think this was a fraud and no survey was done at all. When I tried to contact the original survey company, I was not satified that these people could execute a survey at all.

My real estate attorney never told me during the purchase to conduct a full instrumentation survey, or that a real survey was desirable or warranted.

In addition to this, the real estate agent failed to provide me accurate information. When I sited the properly line myself, the bounds pointed out by the agent were not the actual bounds. This made a big difference in the location of the patio and retaining wall, since from the real estate agent's information, the wall and patio were clear of the line, when in reality they straddled over it.

I suspect that the real estate agent knew about the encroachment, but did not say anything.

Is there anything I can do about these factors?
 


R

rayking

Junior Member
How significant the land is? If it is big, you might ask for a reasonable price to see if the neighbor wants to buy it. If it is small, you could just give the land to the neighbor but ask him to pay the legal fees and survey to mark the new boundary. This could clear both of you up. But before that you do need to make sure there is indeed an encroachment there.
leguleian said:
What is the name of your state? Massachusetts

Based on my previous posted, it looks like I am potentially getting involved in an ugly and expensive litigation suit regarding an encroachment to my land which cannot easily be removed.

If I win this case, am I entitled to recover damages? These damages consist of: attorney's fees, surveryor's fees, out of work time, cosmetic damage to the land, court costs, etc. In addition to this, I have substatial ill-will created with my neighbor which is perhaps worth more than all other factors combined.

Also, there are other factors concerning this case which really bother me.

When I initially purchased the home, I hired both a surveyor and real estate attorney. I paid good $$$ for these services. My real estate attorney failed to advise me properly. After the boundary dispute emerged 1.5 years after purchase, she said that the survey that was done was a "tape survey". This type of survey failed to identify the encroachment. A tape survey does not involve instrumentation, only a tape, according to the attorney. I was not aware of this. Is this industry practice? Quite frankly, I think this was a fraud and no survey was done at all. When I tried to contact the original survey company, I was not satified that these people could execute a survey at all.

My real estate attorney never told me during the purchase to conduct a full instrumentation survey, or that a real survey was desirable or warranted.

In addition to this, the real estate agent failed to provide me accurate information. When I sited the properly line myself, the bounds pointed out by the agent were not the actual bounds. This made a big difference in the location of the patio and retaining wall, since from the real estate agent's information, the wall and patio were clear of the line, when in reality they straddled over it.

I suspect that the real estate agent knew about the encroachment, but did not say anything.

Is there anything I can do about these factors?
Click to expand...
 
J

jimmler

Member
leguleian said:
What is the name of your state? Massachusetts

Based on my previous posted, it looks like I am potentially getting involved in an ugly and expensive litigation suit regarding an encroachment to my land which cannot easily be removed.

If I win this case, am I entitled to recover damages? These damages consist of: attorney's fees, surveryor's fees, out of work time, cosmetic damage to the land, court costs, etc. In addition to this, I have substatial ill-will created with my neighbor which is perhaps worth more than all other factors combined.

Also, there are other factors concerning this case which really bother me.

When I initially purchased the home, I hired both a surveyor and real estate attorney. I paid good $$$ for these services. My real estate attorney failed to advise me properly. After the boundary dispute emerged 1.5 years after purchase, she said that the survey that was done was a "tape survey". This type of survey failed to identify the encroachment. A tape survey does not involve instrumentation, only a tape, according to the attorney. I was not aware of this. Is this industry practice? Quite frankly, I think this was a fraud and no survey was done at all. When I tried to contact the original survey company, I was not satified that these people could execute a survey at all.

My real estate attorney never told me during the purchase to conduct a full instrumentation survey, or that a real survey was desirable or warranted.

In addition to this, the real estate agent failed to provide me accurate information. When I sited the properly line myself, the bounds pointed out by the agent were not the actual bounds. This made a big difference in the location of the patio and retaining wall, since from the real estate agent's information, the wall and patio were clear of the line, when in reality they straddled over it.

I suspect that the real estate agent knew about the encroachment, but did not say anything.

Is there anything I can do about these factors?
Click to expand...
I will only comment on the surveying part of your question.

Lenders do not usually require anything more than what is called in the surveying community a Mortgage survey or Location drawing. Basically the only thing that is certified to is that the house is actually on the property. They usually cost $200-$350 and are not a boundary survey. They usually state on the drawing that it is not a survey and should not be used to establish property lines. I am not sure if these are allowed in your state or not.

An actual boundary survey usually costs $1000 or more, and most people decide that they are already spending enough at the settlement table.

It is up to the buyer to request that an actual boundary survey and a boundary survey drawing showing encroachments be done before settlement to protect their property rights. Real Estate agents are not experts on propety lines.

If this is going to litigation, I would suggest not hiring the cheapest surveyor you find, you often get what you pay for. You should also ask if the surveyor has previous experience with being an expert witness in similar cases.

If you buy property again, get it surveyed first! You could have saved all this expense now by knowing where the property lines were before you bought it.
 
L

leguleian

Guest
Thank you for this information.

Yes, I screwed-up by not getting a boundary survey done before closing. This was my first real estate purchase. I did not know all the particulars of the law. That is why I hired an attorney to help me. My attorney never properly advised me. But such is the case these days, let the buyer beware.

My only dilemma right now is precisely what to do. I am tempted to try to work-out a compromise solution with the neighbor, but this could be dangerous. I tried this previously to resolve the issue. The neighbor responded in an adverse and near hostile manner.

The value of the property in question is not trivial. Land in the area is very expensive. This small piece of land could be valued at $50,000 or more, because the structure in question is intrusive to privacy. Privacy is the use of land which is held at a premium in the neighborhood.
 
C

Ciarraine

Member
So I read this post and the last one.

You have an encroachment on your property that was built prior to your ownership, and prior to the current encroaching landowner's ownership.

Dig up your title insurance from your sale papers and call the state office for the title insurer and open a claim. The reason you had the location drawing done was to satisfy the need of the title company that the property was insurable and there were no encroachments. There were. They issued title insurance to you anyway. Sounds like a claim. Let the insurer work it out for you. They may get compensation for the land, they may get specific performance, there's a lot of ways to resolve the issue. On their nickel.

The primary reason people buy title insurance isn't simply the land value they're trying to guard, it's also the litigation fees they don't want to pay. If you're like 99% of homeowners, you bought title insurance and you're covered.
 
J

jimmler

Member
Ciarraine said:
So I read this post and the last one.

You have an encroachment on your property that was built prior to your ownership, and prior to the current encroaching landowner's ownership.

Dig up your title insurance from your sale papers and call the state office for the title insurer and open a claim. The reason you had the location drawing done was to satisfy the need of the title company that the property was insurable and there were no encroachments. There were. They issued title insurance to you anyway. Sounds like a claim. Let the insurer work it out for you. They may get compensation for the land, they may get specific performance, there's a lot of ways to resolve the issue. On their nickel.

The primary reason people buy title insurance isn't simply the land value they're trying to guard, it's also the litigation fees they don't want to pay. If you're like 99% of homeowners, you bought title insurance and you're covered.
Click to expand...
Not true. Actually, since a boundary survey was not performed, the title policy very likely has a survey exception and will not cover any survey issues. It is not a bad idea to look into it, but I would not expect much from the title insurance.
 
B

BelizeBreeze

Senior Member
jimmler said:
Not true. Actually, since a boundary survey was not performed, the title policy very likely has a survey exception and will not cover any survey issues. It is not a bad idea to look into it, but I would not expect much from the title insurance.
Click to expand...
You'll get used to her soon Jim, if she's around long enough :D
 
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