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Buying new home with encroachment, Washington State


Hi,

I'm interested in buying single-home house in king county, Washington.

The "Sellers disclosure statement" (form 17) include the question "Are there any encroachments, boundary agreements, or boundary disputes?" 

The seller marked "Yes" and added:  "Original builder put fence across
property lines between plots.  Neighbor agrees to leave as is.  Should
fence need to be replaced, agreement w/ neighbor to assess at that time."

According to the seller, the fence was constructed few inches from the
right plot's line and encroaches into his neighbor's plot. There is open
space on both sides of the fence: no building, tree's branches or any
other fixture is crossing to the other fence's side. There is no other
indication to the encroachment; our real-estate agent checked and it
is not listed in the title's office records.

It seems that both the seller and his neighbor are law-abiding,
decent and I did not see any evidence that they have let the
encroachment to get between them. They bought the properties with
the encroachment and as the original properties owners did not
take any action to correct it.

Correcting the encroachment will involve land survey and moving the
fence. I cannot estimate the cost of this act, but I guess it would
be ~$2,000

Mu options are:
1.Insist the seller resolve the encroachment
2.asking for price reduction for $1,000
3.do nothing
4. other

What is your opinion?

Thanks,
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November 21 2012 - Seattle
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Replies (7)

I would advise my client to ask for the price reduction. If that didn't work then doing nothing would suffice, if the buyer wanted the home. Since it is unlikely necessary for the new buyer to have to remove it. This is more of a situation regarding how long the encroachment has been there. In California, after several years, if the encroached party has done nothing, this will result in loss of rights. Regardless of the state of the law on this subject, self help is a dangerous alternative. If the encroachment is a structure or improvement, there appears to be no right to remove it through self-help unless it can be shown that the encroaching neighbor put it there in bad faith and with the knowledge that it encroaches. Although the law in California is not perfectly clear, it appears that the encroaching structure is the encroacher's personal property to which he or she has a conditional right, and resorting to self help to remove the structure could subject the removing party to a claim for damages. Can an encroaching party go onto the burdened property to remove improvements? Civil Code section 1013.5 now provides that if the encroachment was put in place in good faith and because of a mistake of fact or law, the encroacher may remove the encroaching structure if the encroacher pays the burdened landowner all damages proximately resulting from the affixing and removing the fixture.
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November 21 2012
I am not an expert in law, but I have a hard time believing that after 7 years a part of property would revert to another owner just because there is a fence on it for 7 years. There sounds like there is notification since there is an agreement and it is noted as an encroachment. I have seen people go nuts over a fence being 2 inches off at a corner. I don't think any property will be lost if the fence stays.

Tim
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November 22 2012
Profile picture for SoCal_Engr
It sounds to me like the neighbor seems quite reasonable, and this is an opportunity to ask their input. You may find that they're still okay with the fence, and are willing to wait until it needs to be addressed to correct the placement. If that's the case, then all's good.

If the neighbor sees this as an opportunity to relocate the fence, determine how they want to make this happen. Maybe they want something different? Maybe they always anticipated in sharing the cost? You never know until you ask.

If the neighbor wants the fence corrected as part of your taking ownership, but doesn't want to share any of the cost and is okay with a solution that you propose, then it's time to negotiate with the seller on cost.

The two things I believe you should keep in mind (which I haven't seen in the other answers), are:

1.  If you buy this house, you will be dealing with your new neighbor far longer than the seller. Take the opportunity to start off on the right foot by showing some concern for their interests.

2..  I don't know anything about the selling price or your finances, but $2k seems a small issue in the grand scheme of things. I'd definitely consider asking for some considerations, but I wouldn't consider this as a stake-in-the-ground issue.
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November 22 2012
Profile picture for user9884502
In reply to Tim & Rachel's comment: It is called adverse possesion by prescription. Even though it sounds strange that this could happen, it is actually a common occurance. The individual with the property encroachment will typically consider 1 of 2 legal remedies when protecting their encroachment: adverse possession and prescriptive easement. Both of these legal remedies aims to reduce litigation and preserve the peace by protecting the individual with long-standing possession. Adverse possession means claiming full ownership of the land. In order to win a claim for adverse possession, an individual must prove he or she used the land openly and notoriously, hostilely to the true property owner’s claim in the land, and continuously for the state statutory period (and in some cases, paid the taxes on the property claimed). Some states permit accidental adverse possession (such as might occur with a surveying error). Prescriptive easements may also provide the encroacher with legal relief. A claim for prescriptive easement is simply a claim to use another’s land, not to possess it. It is similar to adverse possession, except that in many states the individual is not required to pay taxes on the property. Talk with an Attorney If you would like more information regarding property encroachment or adverse possession laws in your state, contact a qualified attorney in your area.
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November 22 2012
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Get your facts straight before posting false information on the web. Adverse possession is not allowed in California because the claimant has to pay property taxes in order to have an interest in someone else's property. Backyard encroachments cannot create an easement.
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June 08
Get your facts straight before posting false information on the web. Adverse possession is not allowed in California because the claimant has to pay property taxes in order to have an interest in someone else's property. Backyard encroachments cannot create an easement.

True but the question refers to a property in Washington. . . . .and this post is two year old BTW, Im sure they have figured it out by now...
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June 08
This is another good example of why agents from other states should not answer questions about land in Washington.  Based on the answers below, apparently California law is different on adverse possession than Washington law.  I didn't know that there were differences, but it's hardly surprising because there are a lot of differences between our laws and theirs. That's why I wouldn't go looking for questions in California that might touch on adverse possession, or just about any other topic.

This is really a question that if it weren't so stale should be referred to an attorney for a proper answer.   But since it is so stale I would say that it probably doesn't make an adverse possession claim because the possession is not hostile.  It also doesn't seem to be a "mutual recognition and acquiesce" claim (an easier form of accomplishing an adverse-possession type result), because they didn't agree that was the new line.  If anyone wants to learn a bit more about those topics, Google "Krismer  Merriman  Cokeley" (without quotes) where I discuss both topics in an old P-I blog piece.

I would also note that if the buyer gets the "homeowner's" level of title insurance, there is some minor coverage for needing to move fences.  I'm not sure whether that would still exist though where the buyer knows about the encroachment prior to buying.
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June 09
 
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