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Marching More Than 1 Foot Over the Line

Real Estate Agent with eXp Realty of California, Inc. CA DRE #01490977

Sometimes people step over the line in what they say or do. It might be a minor issue, or perhaps not. It may be unprofessional, or even unethical or illegal.


And sometimes it’s not just about people but things. Like a fence. And it killed the sale.


Some years ago I had an out-of-area buyer who was interested in buying a lot to build a home on in a semi-rural area, one that offered some views. We found a great lot, about 1 acre, on a hill about 10 miles inland, with great views of the mountains and hills plus a distant ocean view. The lot was located between 2 other homes on a private street of fairly expensive custom properties.


An offer was made and negotiated, escrow opened, and we started our due diligence.


land for sale signI recommended the buyer pay for a survey as one did not exist, and that was completed. It was not inexpensive but well worthwhile, as you’ll see.


That’s when we learned the neighbor’s fence to the west (an out of area owner) was encroaching on the vacant lot, and significantly so. The surveyor estimated 1500 – 2000 SF of the vacant lot was on the neighbors’ side of the fence.


In addition, based on the plotting of the easements for utilities it appeared that the neighbors’ water line ran through the vacant lot to the house.


As things progressed I advised the buyer to consult a real estate attorney, since the buyer wanted to have the seller pursue having the neighbor relocate the fence, or possibly doing so after closing. The seller talked with the neighbors but they did not want to take down or relocate the wrought iron fence that had been in place for a number of years.  


The question was raised with the seller…why not just take the fence down that is encroaching without the neighbors’ permission? Other suggestions were made by the buyer in consultation with his attorney as a way to resolve the matter.


But the buyer was not willing – wisely – to close without the fence issue being addressed, despite the request to do so from the seller.


Ultimately buyer and seller could not come to an agreement about the encroachment and the transaction was canceled.


It was a good lesson both in terms of the value of a survey and working with an attorney due to potential risks and legal questions regarding the encroachment.


This is my first entry in the ActiveRain March 2023 Challenge, "March to a Solution."


Photo courtesy of Pixabay

Posted by

Jeff Dowler, CRS
Certified Residential Specialist / Realtor®

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Comments (41)

Kimo Jarrett
Cyber Properties - Huntington Beach, CA
Pro Lifestyle Solutions

Incidents like this occurs when the property owner doesn't erect a fence to separate his property. Had he fenced the property, the neighbor would be guilty of trespassing. Kat Palmiotti's comment about squatter's rights is so true and because the neighbor fenced his property, I don't think the seller would have prevailed had it been litigated. 

Mar 10, 2023 10:10 PM
Jeff Dowler, CRS

Kimo Jarrett 

The problem here was that the neighbor erected a fence without checking on the property line. And the seller bought the lot without checking on the location of neighbor's fence.


Mar 11, 2023 09:52 AM
Carol Tunis
Florida Homes Realty & Mortgage - Saint Augustine, FL
Carol Tunis...a "HouseSold" name!

Things like this can and do happen!  I sure hope the seller withdrew the listing and won’t list until the issues are rectified or at the very minimum, disclose it up front before a buyer does their due diligence and spends again..

Mar 11, 2023 06:26 AM
Jeff Dowler, CRS

I haven't looked to see what happened as it was some years ago Carol Tunis or whether anything happened with the neighbor's fence.


Mar 11, 2023 09:01 AM
Marte Cliff
Marte Cliff Copywriting - Priest River, ID
Your real estate writer

I had a sale fall apart because it turned out that the well was 2' over on the neighboring property. The owner of the neighboring property, who had inherited it, wanted a great deal of money to grant an easement to that 2' of land.

Never mind that it was nowhere near his own home and the lay of the land made it improbable that it would ever be developed.(20 years later and it hasn't been.) It was part of a large parcel.

And never mind that the original owner had been present when the well was drilled - and believed that the land belonged to his neighbor.

I was upset - not just because the sale fell through, but because the greedy one was my cousin.

Mar 11, 2023 08:18 AM
Jeff Dowler, CRS

That's quite a story Marte Cliff made even more difficult with family involved!


Mar 11, 2023 09:03 AM
Debe Maxwell, CRS

OH WOW! You should totally share this story in this month's challenge, Marte Cliff

Mar 26, 2023 08:41 AM
Marte Cliff
Marte Cliff Copywriting - Priest River, ID
Your real estate writer

Yes, Jeff, it was embarrassing. The potential buyer didn't know my family was involved, but the seller did. He and my Uncle had been friends.

Mar 11, 2023 10:25 AM
Hannah Williams
HomeStarr Realty - Philadelphia, PA
Expertise NE Philadelphia & Bucks 215-820-3376

Jeff Dowler, CRS What a mess!  Good thing your buyer took your advice.  Glad you were able to find him another property.  

Mar 11, 2023 10:46 AM
Jeff Dowler, CRS

Hi Hannah Williams Well it was the decision of the buyer to walk away (but that was the right decision IMO).

The buyer ultimately moved on to another area.


Mar 11, 2023 07:30 PM
Edward Gilmartin
CRE - Boston, MA

Read about a person who inherited some land in Delaware . He went to sell it but someone had been using it to graze goats on it for a number of years. Judge ruled it was theirs through adverse possession 

Mar 11, 2023 04:34 PM
Jeff Dowler, CRS

Edward Gilmartin 

I don't recall that particular story but have heard similar ones about adverse possession.


Mar 11, 2023 07:31 PM
Mimi Foster
Falcon Property Company - Colorado Springs, CO
Voted Colorado Springs Best Realtor

I just read about that, Edward Gilmartin. As Jeff's article states, the importance of a survey, or even an ILC, is so important and so easy for people to say, "I don't need one." Good job, Jeff, and glad they had one done. 

Mar 11, 2023 06:59 PM
Jeff Dowler, CRS

It WAS the right decision by the buyer Mimi Foster .


Mar 11, 2023 07:32 PM
Lynda Eisenmann
Preferred Home Brokers - Brea, CA
Broker Associate ,CRS,GRI,SRES, Brea,CA, Orange Co

Interesting reading Jeff....I'd imagine that so many of us live in(what I call a 
"cookie cutter " marketplace)  for most of us it does not happen often.  Good to know (as always) you were right on top of things! 

Mar 15, 2023 07:58 PM
Jeff Dowler, CRS

Thanks Lynda Eisenmann 

I suspect this is a much more common issue in more rural areas vs. tract communities.


Mar 17, 2023 10:16 AM
John Juarez
The Medford Real Estate Team - Fremont, CA

You sure saved that buyer's butt by suggesting a survey, Jeff. I wonder what has happened to that lot since that time.

Mar 19, 2023 04:38 PM
Jeff Dowler, CRS

John Juarez 

I'm glad the buyer felt a survey was a good idea...it certainly was in this situation.

I believed the lot sold finally but do not know how things were resolved or if anything was built there.


Mar 20, 2023 05:33 PM
Matt Brady
Watermark Capital - Del Mar, CA
One of San Diego's Best Equity Advisors

If that square footage was not an issue for the new owner could they not have granted an easement to the neighbor (perhaps for compensation? )

Mar 20, 2023 05:55 PM
Jeff Dowler, CRS

Matt Brady 

That certainly could have been a resolution but the buyer did not want to pursue.


Mar 20, 2023 08:35 PM
Steffy Hristova
HomeSmart Elite Group Tempe AZ Tel: 602.710.8161 - Tempe, AZ
Tempe AZ Realtor - Your Home Close to Your Work!

It was very smart to advise Buyer to order a Survey, and well worth the potential headaches that were avoided. 

Mar 22, 2023 08:17 AM
Nick Vandekar, 610-203-4543
Realty ONE Group Advocates 484-237-2055 - Downingtown, PA
Selling the Main Line & Chester County

Interesting that nothing could be worked out, we had this once with a buyer and the seller asked their neighbors to move the fence which they did, along with the plants they had planted. I had read about a development up in CT I believe from memory where a builder was building next to a Federal park. Everything was surveyed, but somehow, they got it wrong. The first buyer also had a survey done and found the house he was potentially buying encroached on the Federal lands. That one ended up as a lawsuit, which I believe resulted in the house having to be torn down.

Mar 22, 2023 08:28 AM
April Swenson
Coldwell Banker Ocean Shores Brokers - Ocean Shores, WA
CRS and Managing Broker - Ocean Shores Real Estate
Thank you for sharing your experience. I like learning from others.
Mar 22, 2023 08:45 AM
April Swenson
Coldwell Banker Ocean Shores Brokers - Ocean Shores, WA
CRS and Managing Broker - Ocean Shores Real Estate
Thank you for sharing your experience. I like learning from others.
Mar 22, 2023 08:45 AM
Ginger Harper
Coldwell Banker Sea Coast Advantage~ Ginger Harper Real Estate Team - Southport, NC
Your Southport~Oak Island Agent~Brunswick County!

Good that this worked out.  Congrats!

Mar 23, 2023 08:16 AM
Jan Green - Scottsdale, AZ
Value Added Service, 602-620-2699 - Scottsdale, AZ
HomeSmart Elite Group, REALTOR®, EcoBroker, GREEN

Excellent example of offering wise advice,  working to remedy with a seller, and making the best solution based on the circumstances.  Great entry for the contest! 

Mar 24, 2023 10:01 AM
Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher

There are those times where you just have to have that expression on your face under your hand. Just thinking what the hell is going on. I sympathize with it definitely

Mar 24, 2023 08:42 PM
Steve Penner
Royal LePage Dynamic RE / Pro Ledger Bookkeeping Software - Winnipeg, MB
REALTOR® / Pro Ledger Online (owner)

Interestingly in our market very few get a survey done ... as everyone now buys title insurance instead.  But does make me wonder at times how many fences are over a property line.  Great story to share, good you uncovered it ... it certainly was a large encroachment.

Mar 26, 2023 05:56 AM
Debe Maxwell, CRS
Savvy + Company (704) 491-3310 - Charlotte, NC

Oh, thank GOODNESS you suggested a survey and your buyer agreed, Jeff. I am also big on surveys but, everyone doesn't want one - or feel the need for one. This is one of those examples to share with our buyers of why they are so very important.

Thank you for sharing in this month's challenge - and congrats on the feature too!

Mar 26, 2023 08:45 AM
Brenda Mayette
Miranda Real Estate Group, Inc. - Glenville, NY
Getting results w/ knowledge & know-how!

This is a great tale of having the right support on your side -- an agent who is advocating for what is right; not a sale.  While surveys aren't required, there are certainly times when they make absolute sense.  Thanks for sharing this experience! 

Mar 27, 2023 05:11 AM