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OT: Buying a house with an encroachment

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#1
LizH

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Has anyone here bought a house with an encroachment on it? I don't feel as though my lawyer is being very truthful with me, and it's too late to change lawyers now as I should be closing any minute finally....

Basically, my house is on an L shaped Lot, with an attached vacant property next door making it an upside down T. Problem is, that extra lot used to be the backyard for a property on the next street over. (my house is on the corner) So, there's a TON of encroachment from that property onto my extra lot. 13 feet at one point (a garage) and then a bunch of random 3 feet, 4 feet, 8 feet sections poking into it. (his house is at an angle)

So, obviously I know I can't make this guy move his house or garage, and I'm not seeking that. But, this house is abandoned and falling down, so the only course of action I can see for it is that it's eventually torn down. A little bird reported it to the housing violations dept. already anyway, and he now has 30 days to comply with violations.

Here's the issue: I want him to NOT be able to rebuild once he tears down. If he wants to rebuild on his section of land, have at it. But not the section that he's encroaching on.

From what I understand, he can only rebuild if he has an easement on my property. Title search shows no easement thus far. But what's stopping him from going to the city to get one? So I want some sort of extra protection that he can't get an easement, and my lawyer is basically a jerk and is not making any sort of suggestions, etc. Just gets annoyed that I dare ask a question.

It's not like a 2 foot encroachment, it's 3/4's of the guy's garage halfway into my yard, and it's a piece of crap ready to fall down!

Any thoughts? Anyone dealt with this before?

I did some research on my own and found the encroachment listed on some old deeds to the house, but nothing on the more recent deeds from 1978 on because at that point, that property became the backyard for that house in question.... However, since then, the house has had nothing but poor history and foreclosures, and was most recently sold as two separate lots (which the city should never have done, we wouldn't be in this mess!) in 2006. The guy selling me the house bought the adjacent lot (and former backyard of house in question) and some out of town person bought the house that encroaches on that lot.

Ideal situation is that he would just tear down the house and sell me the lot. :D
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#2
Vipercussionist

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Hmm, I'm no lawyer (but I did stay at a Holiday Inn Express last night!)
But, I don't believe your property can legally stand in the way to block access to his, there will probably be an easement added even if there isn't an official one now. I suspect it has never been a problem, so an "official" easement was never needed.

One of the problems of odd shaped lots.

See if it's possible to make an easement that will supply access to BOTH properties at the same time (ie, a common driveway) that way you won't use up TWO portions of your land, you'll also be using the easement instead of the driveway you currently use. POSSIBLE??
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#3
cdlaine

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Liz,

Get a different lawyer. Before you close.

Peace, Chas
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#4
torydrum

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definately get another lawyer who will protect your interests.

http://en.wikipedia.org/wiki/Easement
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#5
LizH

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Well, I just got a call from my lawyer and he was actually being helpful this time, so he must have had his coffee this morning.

My property doesn't block access to his, so that's not the issue, there's no fences, etc. He has access from his street and have access to my street. The point where the encroachment happens is on a side lot to my house and the back of his house.

I guess there's two things going on here, an old deed to my house from the 40s says that the house next door has a right to be there in it's current state, basically the person who owned my house and land also owned that house and land, and sold it off. So, if it's altered in anyway, it no longer has a right to be there because it deals with that exact structure ONLY, not the land that the structure is on. IE, if it's torn down, it can't be rebuilt.

The garage however is separate because then the garage was built in 1952, that's when the plot of land there already belonged to the house in question with a new owner. My lawyer says that he would need to petition the city for adverse possession, and basically because the city took ownership of the lot in a tax foreclosure in 2005, any and all legalities are cleared, ie, the slate is wiped clean. All old taxes are removed, all claims of ownership, etc. So basically starting over. He would need to petition the city for adverse possession, and given the current state of the building, would never get it (unless he has friends in high places). Then he would need to get a building permit, and the city would never issue a building permit for someone else's land.

So my attorney basically said, something down the line possibly could happen and we wind up in court, yes, but he thinks the likelihood is very low. He would also only get the 13 feet or so if for some reason he did actually get adverse possession. My concern was that he could take back the whole lot, which comes to 2 feet from my house, which I'm not cool with.

So I guess it's ok. The bank isn't thrilled about it right now, so they're likely going to split this lot off the deed and it will be deeded to me separately.
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#6
Vipercussionist

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Hmmmm,

Quote

Easements may be created in a number of ways. In most of the United States, using someone else's property, for example, for ingress and egress over a certain number of years, regularly and without the consent of the property owner, can give the user the right to continue using the property for the same purpose for as long as the user wishes. This method of acquiring an easement is called a "prescriptive easement" or "easement by prescription."

OOPS!! Came in 2 minutes too late.
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#7
cdlaine

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Liz,

Would seem to me that this is already a headache...will continue to be a headache... I have an Aunt with a very similar situation , the battle has gone on for years, the Lawyers are making profit, the surveyors and re-surveyors are making profit, and the situation has no resolution in site. And..to make matters worse ...my Aunt is trying to throw in the towel and sell out completely, but the situation is scaring off potential buyers. Now that I think of it...the exact same thing happened to my Mom on property in Florida...an expensive non-solution was reached...she (in your position) lost a significant amount of what could have been re-sale profit...at an age when (for her) "make-up" time had passed.

Probably one of the biggest purchases of your life. Make sure you get everything addressed to your satisfaction before you sign....the banks reticence (and their CYA) should be a indicator. Look out for your best interests....seems nobody else is.

Do you absolutely have to have this house ?

Peace, Chas
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#8
SwivoNut

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girlthatdrums said:

So I guess it's ok. The bank isn't thrilled about it right now, so they're likely going to split this lot off the deed and it will be deeded to me separately.


Don't count on it. The bank does not have the authority to do that. In my state at least, land divisions of any kind have to be legally made and the legal descriptions of the property altered and filed with the Register of Deeds office. The Register of Deeds has on file the very detailed legal description of the property and that's exactly what you will own if you buy it.

Anybody else's structures of any kind (building, driveway, fence, drain field, etc.) that are on the described parcel are encroachments and should be completely removed before buying the property. When the time comes, you may not be able to sell this property if any encroachments exist. I don't recommend buying any property that has encroachments or any encumbrances (outstanding taxes, special assessments, etc.) on it, and I can't for the life of me understand how any lending institution could approve a loan for such property, especially in the current economic fiasco the housing market is in. And I can't understand why your lawyer would even consider letting you buy the property without resolving the encroachment first. I recommend you get a second opinion from another lawyer. This whole thing doesn't sound right to me. Be very careful.
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#9
DanC

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Liz, you have to ask yourself a question: 'what will it cost me to walk away from this deal?'

If the answer is 'not too much', then maybe you should consider that course of action.
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#10
BennyK

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Hi Liz.
I would probably try and contact the previous owners and find out if this was an issue for them as well.
Were they the original owners. Is your neighbour to be the original? Maybe money changed hands unofficially.
It has to be done. Could sour the relationship with the neighbours,maybe not. These are things your lawyer should be doing. IMO. BennyK.
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#11
LizH

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What I meant by the bank splitting off the lot, is just to separate it from the deed of the house, it's actually in no way connected to the house right now, we were going to combine it as part of the sale. My house lot and this lot already have separate tax id's, the guy was just tossing it in with the sale. if we leave it separate, the bank is happy, i can resell without the encroachment issues of this and let this lot sort itself out separately. It's only 50x100 anyway, but I want it because it butts right up to the side of my house, don't want anyone to be able to come that close to my house without trespassing.

As to whether I HAVE to have this property:

This is only PART of the garage that will become my studio. All 2100 sq ft of it. Find me a $70k house with a garage like this and a house totally redone with new roof on both, and I will gladly walk away from the deal!

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#12
LizH

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Benny, to answer your question - both these properties have a sordid past. An out of town investor bought both, one from the estate of the late previous owner who had been there for 30-40 years in 2001, he bought the L shaped lot. In the meantime, the county had taken ownership of the house that encroaches on mine along with their backyard (which is my extra lot) Following all this so far? :lol:

Then that same out of town investor bought that extra lot and house in 2002 at the tax auction. He sat on both until 2005, when he lost the L shaped lot to foreclosure. That's when the guy I'm buying from bought it, he's a contractor, and he bought it to flip. He gutted it and used the massive garage to store equipment for his roofing business. In the meantime, he moved in his foreman to the house who was renting.

In 2006, the out of town guy lost the other property and extra lot. The guy I'm buying from went and bought the extra lot, but not the house (because it's really a piece of crap, didn't want to deal with it) unknowing of the encroachment.

Another out of town guy bought the house, and has done nothing with it since. He's in housing court at the moment.

So there's really no one to ask because the last time this was an issue was back in the 40s, when the original owner wrote into the deed that the people living there had a right to have their house there. But in 1952ish, the lot was sold to them too and there was no longer encroachment or easements because that lot belonged to that house at that point. This is the first time since then that the lot has been separated back out.

So my laywer's point is that the house would fall back to the 1940s deed to my house which says it has a right to be there. If it changes or is knocked down, the agreement in the deed is invalidated and it can't go back up. The garage, however, was built when that lot didn't belong to my house in the 50s, so there may be adverse posession in affect, but in this city, according to my lawyer, when they take a property back, the slate is wiped clean and any easements, adverse posession, etc. are removed and you start over. The title search came back with nothing. So he would have to go back to court and get another adverse posession, which given the current condition of that garage, would be very difficult to do as it's in tear down state.

So, bottom line is, I am actually in agreement with the bank that we should keep this lot separate. This way if I go to sell the house in the future, it won't even be part of the deal and there won't be any encroachment to speak of. I can then either just sit on the lot or sell it back to the guy with the delapidated house.
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#13
shilohjim

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I would never by any property with easments. Run, don't walk away if possible. The potential exists here for too many future conflicts, and may affect your potential resale and homeowners insurance.
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#14
Rich K.

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70K seems like a small risk when it comes to real estate...if you really like the place.
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#15
DanC

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Liz, if the main property is on a separate deed with no easement, and the second lot is just another item that is part of the sale, that simplifies things in the future.

Quite a lot of 'stuff' for $70k.... :wink:
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#16
Rogersoholic

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Dan thats probally why the property is so cheap. Its too late to change it. All properties Ive purchased have had these. If you want the property, then buy it knowing this and live with the results. If this bothers you in anyway and your lawyer has given full discloser and you do buy it, it will cost you tons of money and aggrivation in the long run and would advise you to stay away. You can NOT stop passage to another persons property under the law, until you've changed it legally. You can NOT take the law into your own hands. All the property owners where I live, have to cross a section of my property to access theirs. Even tho they may not own it and actually have their own driveways that were never put in. Theres no easement, ROW for their property or use of mine. I was told by the police, if I do stop passage, "I" will be arrested, even if I parked a truck on this section of MY land! I consulted with a lawyer and he wants 50k {only the retainer} to make it right. Even tho its not right, to uphold the law, it costs plenty. This will also be many many years in court trying to change it. In the long run, you will loose. Ive been trying to change my situation and nothing has changed in 14 years. It has already cost me 10k. Ive had surveys x2 and filed all sorts of paper work with the town hall, meetings with the board ect. They have all told me Im right but can do nothing to change it. Im not talking about an old house either, its a 1985 subdivision. But the town approved it, but they never followed through on making sure everything was done according to plans ect.

So some things your can do if you do buy:

File a complaint immmediately with your land use office.

Apply for a permit for a fence. In some cases its not needed, so build one that does require one {eg electric} and start in the spot where your having the problem. Good fences, make good nieghbors

Quit claim to each other. In some cases you can change things under a mutual agreement with your nieghbor. This is always faster than a lawyer and far cheaper. This will have to be cleared with ALL leans against your/their property, banks, mtg ect. and filed with town records.

Get title insurance. This will cover any changes made over the years {up to 15} to the property and if you have problems, the title insur will have to pay.

I would advise to get a survey every 14 years. If someone decides to mow your property and they are exclusive to it for 15 years, they now own it. Exclusive means they are the "only" ones who have used and maintained it. With a survey it disproves them from being exclusive.

Set pins. These are done by the surveyour and are cheap usally 100 each. It shows with a pin exactly where your land is and is a federal offense to remove.
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#17
DanC

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I think Liz said that access to the other house is from it's front yard etc, so they have no need to cross her property to get to it.
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#18
LizH

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Some of my posts are pretty lengthy, so I think some folks are skimming and missing details. ;-)

I'm going to close. I like the house. The people in the deal suck and the encroachment REALLY sucks, but I think with the lot seperate from the house it will be ok. The house is very nice, and only $70k. And actually, $70k for Lockport is on the high end, btw!
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#19
ron_haynes

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Right Dan ..., it's not an issue of ingress or egress ...
However Liz, I'd be curious as to what your responsibility to the municipality would be, given that you were eventually the owner of a property that was host to a dilapidated structure ...
I would definitely seek a second, if not a third legal opinion. There are just too many propensities for expensive trouble here.
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#20
Drumstyx7a

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Okay Liz, here's another suggestion ... based on 3 years of municipal experience and working as an assistant to the city attorney ...

Check to see if your town has a Comprehensive Zoning Plan ... that will require that each lot be "platted" and a copy of the plat will be on file with the city. Usually in the code enforcement office or Office of Community Development.

As far as the city is concerned ... the plat rules. If the substandard structure happens to encroach on your property but the plat shows that it's the other guys building then when it comes down there is no allowance for a structure to be built back there.

Your title insurance should rule out any past easements that were granted if there is nothing attached in the final title policy.


A much better lawyer can get you out of any attempted adverse possession but I really don't think that would apply once the building comes down.

Anyway, it seems like your counselor isn't all that versed in municipal law. The encroachment thing isn't real estate law, it's municipal because code is going to be the final arbitor.


Robb
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