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Resolving encroachment/boundary issue without lawsuit

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teamg

Junior Member
What is the name of your state (only U.S. law)? SC

My husband and I have owned a single family home in South Carolina for over 8 years. Now that we are selling it, we have learned the neighbor's patio overlaps the recently surveyed property line by about 4 feet. The edge is less than a foot from the side of our house.

The patio has been in place for at least 50 years and no previous owners of our house (of which there have been at least four) ever took any action on this matter, nor did we. The house has been in the neighbors' family for over 50 years, and has a side entrance, and path to their backyard, making their use of the area logical to us and apparently to previous owners.

Unfortunately we didn't realize this situation until we were under contract to sell the house :eek: Needless to say, it became a bit confusing. We never reached repair amount agreement with the buyers nor a resolution on the boundary and now the contract with the buyers has officially expired. HOWEVER... they may still want to buy if we can resolve this quickly.

The neighbors have communicated to us (via their lawyer) that they believe they have a right to adverse possession of the patio area. No suit has been filed yet. Whether they do or not - and from everything I have read, they may well have a good case - I would prefer NOT to resolve this in a lawsuit. We are willing to work an agreement with them even if we have to GIVE them several feet of property. As an annoying complication, runoff from the patio has been contributing to water leaking under our house.... but if we retain at least 3 feet of property alongside our house, we've been told by a contractor that a french drain set in a gravel bed should fix that.

What is the FASTEST way we could get this done? Even if the buyers who were interested decide they want to move on, we want to be sure we have a clear title ASAP to get this house back on the market.What is the name of your state (only U.S. law)?
 


154NH773

Senior Member
They have a lawyer... you should also get a lawyer. This can be a complicated situation to resolve.

My suggestion would be to make an offer (money) to resolve the situation and then get on with your life. Whether they have a case or not for AP, you could be tied up in court for the next 3-5 years, and it could cost you $3,000 to $20,000, based on my experience.

You will find it difficult to imposible to sell the house with the issue in court.
 

drewguy

Member
They have a lawyer... you should also get a lawyer. This can be a complicated situation to resolve.

My suggestion would be to make an offer (money) to resolve the situation and then get on with your life. Whether they have a case or not for AP, you could be tied up in court for the next 3-5 years, and it could cost you $3,000 to $20,000, based on my experience.

You will find it difficult to imposible to sell the house with the issue in court.
You might start with a money offer that involves them paying you some amount in recognition that they would have to spend time and money establishing AP. At a minimum they should pay for recording any changes to the boundaries. You also should consider limiting the area subject to AP--not clear what exactly you'd give up, but reach a settlement agreement that states AP applies only to such and such an area (the patio) and they waive any broader AP claims.
 

154NH773

Senior Member
You might start with a money offer that involves them paying you some amount
Actually, I was thinking that you should pay them some amount to give up their claim to AP (not that I actually think their claim is valid). As I said, if you want to sell your house sometime in the next several years, pay their nuisance claim, have them move their patio, and get the money back on the sale of your house.

I wouldn't give up any actual property based on their claim; for that I'd actually fight them in court. That said, however; maybe it doesn't matter to you, and you should follow drew's advice.

If you decide to follow drew's advice, you should weigh the diminished value of your property, and its marketability, against any monetary gain from selling them any of your property.
 
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drewguy

Member
.

I wouldn't give up any actual property based on their claim; for that I'd actually fight them in court. That said, however; maybe it doesn't matter to you, and you should follow drew's advice.
.
Ah, yes. I was assuming the property was a goner and having used it for 50 years as if it's theirs, they aren't going to give it up. And the OP's post suggested being used to things as they are in practice, not in law.

Anyway, I agree with NH--you'll need to pay them to give up their AP claim, move their patio, and so forth. I suspect the easier thing, and perhaps less costly, is to grant them the AP claim, but get some money. I'm not sure how giving up that property affects marketability--be sure it creates no zoning issues or other problems--but from your post I take it the buyers assumed they weren't getting that patio and then learned they had some "bonus" land.
 

teamg

Junior Member
Update and further question

Our preference right now is to approach the neighbors and actually offer to GRANT them the land that is under the patio and the short footpath to the patio, in exchange for them paying to have the new survey line drawn and recorded - rather than give them an easement or battle out an AP claim in court. Frankly I think the neighbor should pay us SOMETHING for this property that she doesn't own in the first place, but I believe she is stubborn and would rather sue us than pay us anything at this point.

My new worry is, is our lender, whom we still owe the balance of our purchase price, likely to have heartburn over this? We are talking about maybe 20-25 square feet of land. We have about $75+K of equity in the property. We are hoping the bank would allow us to negotiate and give away a strip of property if necessary, to avoid the possibility of us defaulting and them owning a property with a potentially clouded title. If they wouldn't allow us to "give" it away for free, how would they set the "price" of that strip of land? They will get paid the balance of the loan at closing (which I hope will be soon) so would they really care?

Thanks for any insight.
 

drewguy

Member
Our preference right now is to approach the neighbors and actually offer to GRANT them the land that is under the patio and the short footpath to the patio, in exchange for them paying to have the new survey line drawn and recorded - rather than give them an easement or battle out an AP claim in court. Frankly I think the neighbor should pay us SOMETHING for this property that she doesn't own in the first place, but I believe she is stubborn and would rather sue us than pay us anything at this point.

My new worry is, is our lender, whom we still owe the balance of our purchase price, likely to have heartburn over this? We are talking about maybe 20-25 square feet of land. We have about $75+K of equity in the property. We are hoping the bank would allow us to negotiate and give away a strip of property if necessary, to avoid the possibility of us defaulting and them owning a property with a potentially clouded title. If they wouldn't allow us to "give" it away for free, how would they set the "price" of that strip of land? They will get paid the balance of the loan at closing (which I hope will be soon) so would they really care?

Thanks for any insight.
They shouldn't really care as long as they're getting paid. If you have $75k of equity 25 feet isn't likely to be an issue, although you may need to get them to sign off. I don't see how your threat of default is very strong, however, if you have $75k in equity. They'll still get paid in foreclosure/default, and you have a stain on your credit.

Your proposal seems reasonable. BTW, do you have title insurance on the property? Have you spoken to them about the cloud on the title. They might (a) defend a lawsuit; (b) negotiate an outcome; (c) compensate you for the loss; (d) handle the cost of recording of a revised plat. It all depends on your policy, but if you have one I would definitely discuss your situation with them before you make any final deals or commit to paying something. It's not like homeowners insurance where they can cancel you just for thinking about a claim.
 

teamg

Junior Member
Title insurance

Thanks for the insight. We don't foresee having to default on the loan - I just didn't know if the bank considers that as a possibility when they make decisions.

Yes, we have title insurance. The first lawyer I spoke to about it said that it would not help us because we did not have a survey done in 2001 when we bought the house, and the insurance would exclude anything that could be shown by a "current survey." We simply used a 1991 survey that had been done. The buyers before us did the same thing. The 1991 survey is pretty basic and did not show the patio, and also did not show our patio (other side of the house) although both were definitely there. The 1991 surveyor is deceased so there's no going back and finding out why it wasn't included. Of course we didn't realize at the time that the title insurance was basically useless to us without us getting a new survey.

I've been trying to get an appointment with the lawyer who did our closing in 2001, and finally I have one next Tuesday. I'm hoping that the neighbor will be willing to redraw the line with us without resorting to an AP suit.
 

drewguy

Member
I'm no expert on title insurance, but I think there's a difference between an encroachment and a claim for adverse possession.
 

nanomug

Member
The issue with deeding over a portion of your property is that it could affect any building set backs. So if you want to add a shed or expand the home you may be limited by the new property line.

The easiest way to resolve this is by easement. The easement can be specified for as long as the deck exists in it's present state. Rebuilding deck (more than 2-3 boards a year) will require deck to be relocated to their property.

Definitely they should pay you for the easement, the cost of the easement including the survey and attorney to draw up the easement. Make sure to include maintenance on the easement and who has the right to do what on the easement (including you).
 

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