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September 26, 2011

BOUNDARY ENCROACHMENT? YOUR REMEDY MAY DEPEND ON RELATIONS WITH YOUR NEIGHBOR

So you've decided to sell your residence and you have discovered an encroachment on your boundary line with your adjacent neighbor. This can take the form of a driveway that lies partially over the lot line, or even a garage that straddles the lot line. Whatever the case, you will have to deal with the situation prior to closing. In most cases your neighbor will grant a simple easement allowing the encroachment to remain. But what if your neighbor declines to grant an easement?

We recently faced this very situation in which a paved driveway was placed approximately one foot over the lot line. For various reasons, the neighbor refused to grant an easement and instead offered to sell the area of encroachment to our client. This greatly complicated the situation, but with proper planning we were able to resolve the matter to the satisfaction of the neighbor, the neighbor's lender, the buyer's lender, and the title company.

In this case, we had to first determine the area to be conveyed by means of a survey and needed to confirm zoning requirements. The next step was to determine the existence of any encumbrances on the area to be conveyed which required a title search on the neighbor's property. Once these measures were taken, we reached an agreement with the neighbor for the transfer of the encroachment area. Amendments were made to the purchase contract in the underlying transaction and partial releases of mortgages were obtained on the neighbor's property to assure that clear title would be conveyed. Finally, we obtained city approval of the plat of survey and successful closings followed.

This account shows that sometimes the apparently routine real estate transaction can suddenly present unexpected challenges. An attorney must be prepared to handle these challenges. Although we represented the seller in this instance, a buyer must also need to be aware of this potential issue.