Encroachments Reflected By Surveys

Winter Park Home Magazine / Issue 1 / 2013

A grant of an easement by a property owner can often resolve disputes between neighbors resulting from encroachments of fences, driveways, and roof overhangs by one property owner onto another person’s property. An easement is a formal grant of permission by an owner of land in favor of the owner of a second parcel of land, which grants the second parcel owner the legal right to cross over and/or to utilize a portion of the first parcel owner’s land. An easement, however, also limits the rights of the parties, and in certain situations a transfer by deed may be preferable. The following example depicts certain considerations in determining whether a grant of easement or a conveyance by deed is the appropriate solution, and also emphasizes the fact that a contract purchaser should always obtain a survey prior to closing.

Five years ago Robert Smith purchased his home on Lot 1 in the XYZ subdivision. He paid cash, and opted to forego the expense of a survey. The house was situated inside the fences on the property. Mr. Smith was provided a title insurance policy at closing, and the general survey exceptions were reflected as an exception on Schedule B of his title policy. This effectively excluded coverage in his policy for any encroachments onto or from his neighbor's property that may have been reflected in a survey.

Last year Mr. Smith decided to make some home improvements, and contacted ABC Bank for a loan. The Lender indicated, as part of the loan approval process, that he would have to pay for a Lender’s title insurance policy and provide a copy of his survey. Since he never obtained a survey, Mr. Smith ordered a new survey which reflected  that the entire width of his house encroached 3 feet into Lot 2, and that the fence encroached an additional 4 feet beyond the edge of the house. The Lender then indicated that Mr. Smith's loan would not be approved unless he can establish that he owned, or had the right to use, this 7 foot strip of land.

Mr. Smith contacted me for advice. I advised Mr. Smith that he would not have a claim under his title insurance policy since the policy reflected the general survey exceptions. I also advised him that the owner of Lot 2 has no obligation to convey this strip or to grant an easement. I further advised Mr. Smith that his best case scenario is to have the owner of Lot 2 convey the 7 foot strip outright to Mr. Smith, and that the worst case scenario entailed Mr. Smith physically removing the fence and demolishing the portion of his house situated on Lot 2. In the event a portion of the house was demolished, Mr. Smith would also have to obtain permits from the building department to make the necessary changes to his home.

We then obtained title searches for each of the lots, and confirmed that Mr. Smith owns Lot 1, and that J.R. Jones owns Lot 2. The search also reflected one outstanding mortgage on Lot 2. Mr. Smith then authorized me to contact Mr. Jones directly to resolve the encroachment problem. 

Mr. Jones stated he was not aware of any encroachments, and that he would be constructing a home on his lot in the near future. He stated he was willing to convey the 7 foot strip outright, for an agreed sum, provided we obtained written confirmation from the building and zoning departments that this conveyance would not adversely impact his ability to construct a home on Lot 2. He also advised me to contact his attorney directly with the results.

The building department official indicated that each of the lots in the XYZ Subdivision are substandard in size, and that any reduction in the physical size of a lot, unless a variance was first obtained by that property owner, would result in the denial of a building permit for that lot. He could not guarantee, under the circumstances, that the variance would be approved.  I then asked whether the granting of an easement under the facts presented would require an approval by either the zoning or building departments, and he confirmed that no approval would be necessary.

I then contacted Mr. Jones' attorney, gave him the contact information for the building department, and asked him, after he talked with them, to determine whether his client would grant an easement instead of requiring a deed of conveyance. I also explained that his client had a mortgage on the property, and asked whether he would also contact his lender to obtain its consent to a grant of easement.

Ultimately Mr. Jones agreed to grant the easement, and to obtain the consent of his lender, provided Mr. Smith paid all costs and expenses incurred by Mr. Jones, and also provided Mr. Smith compensated him for the reduction in valuation of Lot 2 resulting from the grant of easement. The grant of easement that was finally approved also included language that the easement would automatically terminate in the event Mr. Smith's house were destroyed by fire or natural disaster, and that any new construction by Mr. Smith, or his successors in title, would have to be located within the platted lot lines of Lot 1.

The time and expense incurred by Mr. Smith could easily have been avoided if he had obtained a survey at the time of purchase.  Mr. Smith's predecessor in title would have been obligated to resolve these issues prior to their closing, and, if the issues were not resolved by the time of closing, Mr. Smith could have elected to terminate the contract and receive a return of his earnest money deposit.  These types of encroachments occur on a somewhat regular basis, and demonstrate the need for obtaining and reviewing a survey prior to closing. 

This Article is not a substitute for hiring an independent attorney

to prepare an easement or deed across real property.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank’s legal practice has concentrated on complex real estate, tax and corporate transactions throughout Central Florida.  Frank has been involved in the Central Florida community for more than thirty years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980.