Opinions Needed - Buying a house with an encroaching fence

I am purchasing a home in a subdivision here in the Cleveland area. The home is a new home and is currently owned by the builder who built it. After spending some time walking the lot, I have found that a neighbors fence is encroaching onto this property. When a developer has the lots in a subdivision surveyed, there are metal stakes driven into the ground. I have located these stakes very easily and followed the plot plan (which are straight lines). It is obvious that the fence protrudes onto the property. I feel like it should be the builders responsibility to address this issue before I close on the property. Is this wrong? I have not had it surveyed simply because the original surveyor's stakes are still very visible. What would you do?

 

I would ask the lawyer that is doing the closing.

 

This is definitely an issue you want to get resolved sooner than later. The first house we ever bought had the same issue. Our fence encroached on the neighbor's property. She was so nice and said it would never be a problem. Well, several years later, after we put our house up for sale, her attitude changed. She didn't want new neighbors and made it difficult for us. After a lot of negotiating and sleepless nights, she finally agreed to keep things they way they were for the new neighbor. Otherwise, we were going to have tear down that fence and build a new one, meaning we'd have to mess up landscaping and shrubs, etc. We learned our lesson on that one.

 

I don't really want to create a stir, especially with me being a new neighbor. I'm in no way that kind of person, but I do not want someone's fence on my property. I have heard something about a law in this state that says if someone has something encroaching on your property, and you allow it, after a certain amount of years they have a right to that property. I just don't want it to create problems down the road. I guess I could go to the person's house and politely ask about it it, but then again, I don't want to be portrayed as a you know what. I just feel that since this is a new home and property, it should be address by the seller and not me. I'm just getting others opinions before I make an issue out of this.

 

Yes, you need to get this resolved PRIOR to closing. You DO need a new survey. You have no way of knowing if neighborhood kids or whoever moved the stakes. You can't trust that they are correct. It will be well worth the money to know exactly what you are getting into. And it does need to be corrected by the seller. Otherwise you are going to be inheriting a great ole big headache. And you are correct, if you allow that fence for a certain number of years, it can become part of the neighbors property. Can't remember the term at the moment.

 

Oh, I hope you didn't think I was saying you're the kind of person my neighbor was. Your situation is actually reverse of ours. If we had been smarter, we would have not just taken our neighbor's word when we first moved in. I was just saying that these things should be resolved now so it's never an issue in the future. No stir created! I think you're wise to seek others opinions. Oh, and I agree with what KDC just said.

 

I agree with KDC, you need to get a survey. Once that is done, then you can make correction of the easement a condition of purchase. Until you have a survey by a qualified surveyor, it's only your opinion that there's an encroachment. A few hundred dollars for a survey now is a small price, compared to the thousands it could cost you to correct the problem later.

 

:iagree: You should make it a condition of closing on the house, and it needs to be done BEFORE closing, because once you sign those papers--good luck getting them to do what they said they would do!

 

Its called Adverse Possession but that only comes in to play if both parties have agreed for 12-30 years that "that" is the property line and the grounds have been maintained as such. If i agree to let you maintain 4 acres of my property because it makes yours look better, that doesnt mean it will eventually become the neighbors because i still know where the property line is.

As KDC said, get a survey. Its $350 and the best insurance you can get. Make the seller resolve the fence issue before you buy it.

 

Adverse possession, that's what I was trying to remember. Thanks! As it was explained to me, if you let someone use your land continuously without any objection, they can (but don't have to) lay claim to it after a time. So yes, if you object to their use, then that doesn't come into play. They always use Salter's Path out at the coast as an example in the real estate classes.

 

Actually, if they are using it with your permission, they can't claim it by adverse possession. Adverse possession is a form of statute of limitation - you have to take action within a certain time to remove someone from your property, or you forfeit the right to do that. The length of time depends on some other factors. If you sleep on your rights, you lose them. As Grinder pointed out, if you let somebody maintain your property for any length of time - however many years - adverse possession never comes into play.

 

Here's an interesting case from the NC Court of Appeals:
http://womblencappellate.blogspot.com/2008/03/coa-decides-adverse-possession-case.html

 

I am not wording it correctly, but I am trying to get the same thing across. Not enough coffee this morning. Long story short, the OP gots a problem that needs to be corrected ASAP if it is indeed an encroachment. 8)

 

Right, he certainly does. And just any objection doesn't help, it may even hurt his case. If he goes ahead with the purchase and then asks the neighbor to move the fence, and the neighbor refuses, he has to take legal action - he has to take the neighbor to court to make him remove the fence, or he could eventually lose that much of the property. It would be much simpler to get a survey and make removal of the encroachment a condition of purchase. In fact, depending on where the OP is getting his mortgage to purchase the property, he may not even have a choice. Many lenders require a survey, and will not close the loan until any encroachments have been cured.

 

Scheduled the survey today, $325.00 piece of mind.

 

Probably a good idea, just to be on the safe side.

 

A bargain, IMO. :cheers:

 

Just out of curiousity, what if 2 neighbors agreed then 15 years down the road one sells their house, what happens to the agreement then?

 

Not sure I understand the question. What is it they are agreeing to?

Taking the OP's situation, say he buys the house with the fence where it is. He and the neighbor can both agree that the fence is on his side, and he gives permission for it to stay there. The clock for adverse possession never begins ticking, because the use of the land is permissive. Now if OP sells his house, the property line is still where it always was, and the new owner can either give the neighbor permission to continue that use, or he can object. If he objects and the neighbor does not remove the fence, that's when the clock begins, and if the new owner does nothing but complain for the next 20 years (without taking legal action to eject the neighbor) then the neighbor probably acquires title to that part of the property where the fence is.

If that doesn't answer your question, try asking a more specific question and I'll give it a shot. :lol:

Disclaimer: Anything I may post on this forum at any time is only my personal opinion, and not a legal opinion or advice. 8)

 

sorry not specific enough, what i was trying to say is let's say 2 neighbors agree to put the fence across the property line for convenience sake of maintaining both sides and they live happily like that for 15 to 20 years then the neighbor whose land the fence is on sells his house, does the verbal agreement between the 2 neighbors still stand upon selling the house or will the other person have to move the fence back to the actual property line. Actually have a friend in VA that is dealing with a similar situation.