Survey over property line - what are the options?

Question

BiggerPockets experts,

I am in the process of purchasing a property, and the survey has revealed that the structure extends about 5 feet past the property line. The property encroached upon is owned by the city. The house is 100+ years old and was likely built before the road system was established. The title company is clueless on how to resolve the issue, so I thought I would reach out to a larger audience.

Any thoughts?

Thanks in advance,

Chris

Tom Gimer · Answer

You’ll want to request affirmative coverage for forced removal of the encroachment, which will require an analysis by the title underwriter. The factors to be considered would include consent, time and materiality.

Without such coverage you’ll be self-insuring which I imagine would be a deal-killer. Good luck.

Without such coverage you’ll be self-insuring which I imagine would be a deal-killer. Good luck.

Chris Thomas · Answer

All,

To follow up on this, and in case anyone else ever runs into this issue, it has been resolved. In short, the original "survey" was a Mortgage Location Survey. This is was a new concept to me, as we (Thank God) don't have these in Texas. Per @Clint Shelley's point, this is useless to actually define the boundaries.

To resolve the issue, I tracked down the company that did the original survey. They were quite helpful and explained that the house had 2 boundaries. One that was where the old pins were (encroaching), and one that was based on '50 from the other side of the street (not encroaching). I got them to re-do the survey (at the sellers expense). In doing so, it cleared up the boundary issue and stated clearly that the house was not encroaching. Problem solved. Closed on the house last Friday.

Thanks again to the BP community for the help and insight.

Chris Thomas

Mike Cumbie · Answer

Wow Texas seems rough (RE is a local thing). Often times here we use a "Boundary Line Agreement". If you have a barn, you are allowed to keep it till it falls down, once it does, you must build past the lot lines. We do it often (like 5% of transactions). It's used for fences, chicken coops, rock walls or anything else that encroaches. Everyone agrees and you go forward. Of course sometimes that requires Bourbon or Whiskey, but we usually get it done :)

Chris Thomas · Answer

All, thanks for the quick responses here. I am, yet again, impressed with the breadth of knowledge in this community.

@Clint Shelley, to answer your question and provide more detail:

- The closing date is next Friday (5/15) and we are completing all the final steps.

- I just got a copy of the survey Thursday night. The survey was not done for this transaction. They sent me the survey created for the last sale of the house (December of 2015). Here are the survey notes. #2 might support @Scott Mac's point.

1.       This report is based on corners found in place.

2.       This is not a boundary survey and conflicting monuments were found to establish the location of [street name] right of way location.

- I noticed the encroachment, as did my realtor. We pointed this out to the title company and they said the survey is "fine" and that "there is no encroachment of the house going over the property line". Unless I'm blind, this is is not the case.

- The (buyer's) realtor has been extremely helpful, and is working with the city on options. Per the discussion here, it looks like I need some type of verification (in writing) that this will not be an issue in the future.

- The lender won't lend until we get a better answer from the title company, which I completely understand.

That's the story. Thanks again for the insight. Feel free to let me know if I've missed anything here.

Thanks,

Chris

Matt Devincenzo · Answer

There is no Adverse Possession on publicly owned property so don't chase that El Dorado. You need to discuss with a local surveyor or civil engineer and/or land use attorney. The answer is really going to depend on a half a dozen different things that will be hyper specific to this exact parcel. These are the kind of things case law is made of...Also something you should be aware of going into this, while the City needs to compensate owners for any property that is taken, they also have a superior interest in the property for the public good. So if this goes to court even if 'you' (or the seller) prevail in being compensated the solution may very well be to have 10-15' of the house removed i.e. the 5' encroachment plus whatever setback amount needs to be removed. But again that is going to be a hyper local determination...some ideas of questions I would be looking at if this was a client coming to me:What is the chain of title going back to prior to the house being built?

When and how was the road ROW acquired?

What does local law and/or mapping or road acts say?

What are the current road standards for ROW width?

Is there a way to vacate or 'shift' the ROW from this portion of the parcel?

Was there originally compensation for the ROW acquisition, and did it include the 'loss of use' associated with the home location?

Did the original ROW acquisition in any way acknowledge the home location?

Was this action completed in 'error' or with the full knowledge of the location and extent of the encroachments?

Whether this is a very simple case of the City ROW was acquired properly and there is no issue, or there are major issue associated with the acquisition will all depend on very specific answers to the above questions. There is a possibility than in completing the research that you find that this was a known encroachment and may even have been allowed with some language that identified it could remain as long as it was never increased, or until the City removed it at their cost.

Clint Shelley · Answer

That's great news that you got this worked out. I know it's nerve-racking to deal with issues concerning boundaries. Now on to making money. Thanks for the update.

Clint

Jonathan R McLaughlin · Answer

@Chris Thomas I remember something like this going before the zoning board. You don’t own it yet so this is not your problem.

If you own it Your best case scenario is that you work with the city and the title company (and bank)  to craft an easement for the house. I’ve been in the hearings and this is often a quick unanimous consent in absence of opposition. This clears up the title issue and you don’t have to go digging.

If the title company will insure it without exception I’d probably let the sleeping dog lie...though there are risks. Keep records!

Clint Shelley · Answer

@Chris Thomas

If it's not a survey, then this may be one of those "mortgage inspection" reports. Some states have these. They're basically approximations of the boundary (hence the note not a boundary survey) with the improvements located and referenced to the boundary line. They're nearly worthless. I hate them and glad they're not legal in Alabama. It leaves you with nothing if there is a problem. You could spend a pile of money and time trying to fix this. A cheap way is to go to the local zoning department and have them give you a letter stating that the house meets local requirements. This may satisfy your lender or if not you'll need to get a recorded easement. Good luck.

Clint

John Litzenberger · Answer

I ran into this with an old farmhouse I purchased back in the early 2000's.  The house was built in 1901.  The city began to grow up around it about 40 years later.  A neighboring property was encroaching in a back corner of the lot about 3 x 10 feet or so.  Long story short, I allowed an easement to them as their property had been like that since it was built, some 60 some years.  If the encroachment has been there for a significant amount of time, 5 years or more without complaint, its hard to contest it anyways.

Simply have an easement drawn up and move on, its 20 square feet.

Scott Mac · Answer

Hi Chris,

Maybe the current survey team made a mistake, or maybe someone moved one of the survey markers in the last 100 years.

In Texas in the olden days some places used bottles, jugs, pots, and etc... as survey markers.If they use a point such as a big rock beside a stream, or an old oak tree with an X carved in it, things change over time.

Or maybe the house has just always been over the lot line.

You might find this article of interest: https://www.lajollalight.com/sd-survey-markers-20170627-story.html

Good Luck!

Survey over property line - what are the options?

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