Bank approval for easement?

[STEPHAN]

What is the name of your state? FL

I own two neighboring properties. One has a mortgage, the other one not. We found that one property hangs over about an inch on the other. If I record an easement or even cut off a small piece of that property, do I need approval from the bank?

 

[adjusterjack]

You'll need to read your mortgage contract for the answer to that question.

 

[Litigator22]

What is the name of your state? FL

I own two neighboring properties. One has a mortgage, the other one not. We found that one property hangs over about an inch on the other. If I record an easement (?) or even cut off a small piece of that property, do I need approval from the bank?

I don't know how you managed to detect the few over hanging centimetres, but record an easement? Sorry, but no can do. At least not with any legal consequence. Why so? Because . .

By definition "an easement is a non-possessory interest in land of another"; with the land benefited by the easement referred to as the dominant estate or tenement; and the land burdened by the easement the servient estate or tenement. Hence, it follows that:

(1) "A person cannot have an easement in land which he himself owns." (Authorities available upon call.)

(2) And, as above demonstrated, when the ownership of both estates - dominant and servient - are consolidated the easement is extinguished. (See "Doctrine of Merger.")

So, I suppose that leaves you with your alternate proposal: "Cut off" the overlap and squeeze it in between the two.

 

[quincy]

What is the name of your state? FL

I own two neighboring properties. One has a mortgage, the other one not. We found that one property hangs over about an inch on the other. If I record an easement or even cut off a small piece of that property, do I need approval from the bank?

How exactly does one property “hang over” the other? The structure itself was built on the other’s property? Or was a driveway built on the other property?

Have you had more than one survey? Why wasn’t this discovered at the time of purchase?

 

[zddoodah]

We found that one property hangs over about an inch on the other.

I think what you meant to say is that a structure erected on one of the properties (let's call it Property A) encroaches upon the other of the properties (let's call it Property B). Correct? If so, I'm going to assume that it would not be practical to move this structure or modify it to remove the encroachment, but please say so if either of those things isn't correct.

If I record an easement or even cut off a small piece of that property, do I need approval from the bank?

You told us that only one of the properties is subject to a mortgage. Which one is it? A or B? The terms of the mortgage will also be relevant.

I'd suggest you confer with a local real estate attorney about how best to deal with this situation.

 

[STEPHAN]

We bought property A at a court auction 8 years ago. It was 10% of the market value, so I decided to take the risk. Property A has three units in two buildings. A survey shows that the roofline of a building on property A overhangs the neighboring property by 0.84'. The building can not be moved. Property A has a mortgage. The building was build in 1960.

I have property B (two units, one building) under contract, closing Monday. This is the property that the building on property A encroaches.

I am buying in cash.

I thought this would be a good time to sort this out.

 

[adjusterjack]

Property A encroaches property B. You have a mortgage on property A. Did you read your mortgage contract since yesterday when I told you to? That's your first step. Are there any limitations on what you can do with the land on property A?

If there is no limitation on adjusting the footprint of the lot, you should be able to just quitclaim a strip of land, record the quitclaim deed, and have the legal description of both properties adjusted by the county through the appropriate process.

If there is a limitation then you'll have to get written permission from the lender to change the legal description of property A. Or, you can pay off the loan and then you won't need the lender's permission.

 

[zddoodah]

Property A has a mortgage.

That's probably better. Seems like the issue could be resolved by slicing off a foot (or more) from Property B and making it part of Property A. Said differently, you could adjust the property line to make Property A slightly larger and Property B slightly smaller.

I cannot imagine this would cause any issue with the mortgage against Property A, but I haven't the slightest idea how you'd effectuate something like this. You should confer with a local real estate agent who can walk you through the mechanics of this and also advise you about the extent (if any) to which the mortgagee should be notified.