Legal question regarding property line

Factual Questions
1

I purchased a house almost one year ago. The back yard is completely fenced in. Both sides of the yard are bordered by the neighbors’ fences and the back of the yard only has a chicken wire fence to, presumably, mark the property boundary by sellers who were too cheap to install a real fence. Well, I thought, at least it is fenced in!

Before we closed on the house our real estate agent suggested we have a survey done and we agreed. As this was done close to the closing date we were told we would receive the survey at closing. Not knowing much about this field I assumed that my agent looked over the survey and thought everything was kosher. On the day of closing my mind was not on the survey and I completely forgot to ask about it until after we closed. I took the survey and, without paying any attention to it, put it with the pile of papers I collected at settlement.

Flash forward to this week. I’m in my back yard and I notice a pipe sticking out of the ground. This pipe is about 30 feet closer to my house than the back fence is. Now I have a sick feeling in my stomach. I go dig up the survey and, sure enough, the pipe is where my property line ends…not the damn fence. This is easy to tell from the survey as my true property line is identical to the back of my next door neighbor’s fence. I should note that my land backs to a wooded area owned by the county. Also, for those wondering how I never noticed that pipe, my back yard has a grass area with no trees that goes from my house back to what turns out to be my true property line. The additional area behind the grassy area that I believed was part of the property is basically a wooded area…and the pipe is in that wooded area.

The sellers advertised the house as having a private wooded yard. The wooded section of the yard was not theirs to sell! I am wondering if I have any recourse here. Can the sellers be held responsible for the misleading ad? Am I the only person responsible for knowing the boundaries prior to closing? Should the surveyor have maybe mentioned that there was a fence well outside of the fucking property line? Should my real estate agent have reviewed the survey prior to closing and maybe let me know that I was buying half the yard that I thought I was? I don’t know legally if I have been wronged or if it was entirely my responsibility to know these things prior to closing. I feel like a lot of professionals were involved in this transaction, and made a lot of money off of this transaction, yet nobody spoke up.

Any advice or is it caveat emptor? I should mention that this is in Virginia

2

How long has the fence been there? How long did the previous owners use the property as their own? You could have an adverse possession case.

3

Two words “Title Insurance”

4

Adverse possession usually cannot apply to government-owned land, so no matter how long that county land has been fenced in, it will most likely never become yours, yorick73. The upshot is that since it is county land, your neighbors probably don’t care (and won’t complain) about your fence. Just be prepared to move it if anyone contacts you about it.

5

ianal, nor surveyor, nor real estate agent

a real estate agent acts on behalf of the seller. by providing you with a survey, even if it contradicts the information in the ad, you knew (if you read the survey) what you were buying. the real estate agent would claim they misunderstood the true property when they made the ad. if the surveyor was hired by the real estate agent, then the results might be between them.

6

He said the property he is encroaching on is county owned, so not likely.

7

I was a surveyor, so I can answer to this. The surveyor would have absolutely mentioned the discrepancy between the fence and actual boundary. It will also be shown on the plat, but there may or may not be an explicit note.

The problem is, as johnpost mentioned, the surveyor would have probably only told his client, so you could have been kept out of the verbal loop. I’m sorry to say, however, if the plat was available to you and you didn’t look at it, that it is your fault, not the surveyor’s.

8

I’m searching my brain here, but isn’t there a difference between government land owned for a government purpose (like a school, courthouse, police station) and government land owned for other purposes? I thought that although the former could not be adversely possessed, the latter could.

9

I had a buyers agent.

10

I have title insurance but I’m not sure what that has to do with this situation. Could you please explain?

11

I paid for the survey so I am the client. No, the plat does not mention any discrepancy nor does it show the back portion of the fence at all. There is a line that shows my property boundary and nothing beyond that except that the land behind me is owned by the county.

I don’t think the plat was available to me in any case. The survey was done some time before closing but I know I did not obtain a copy until after closing. I don’t know why but I believe the plat was sent to the office of the attorney who handled the closing. Like I mentioned earlier I actually had to ask for a copy on my way out of closing. Is it my fault I didn’t ask earlier? Sure, but, like most people buying a house, I didn’t think about this sort of thing happening. This is at least part of the reason we hire professionals to think about all of the stuff that can go wrong.

12

Yeah, I figured as much. I’m not concerned about the fence. I’m sure the county will never think about it. My concern is twofold. I thought I owned this land and now I do not, which means if I wanted to use that portion of land for anything I am SOL. Second, if I sell this land I must disclose the true size of the plot which, in my opinion, makes it less valuable.

13

A real estate agent typically has a fiduciary duty to timely disclose known material facts to his or her client. Somehow your agent thought it was prudent to do a survey but not tell you about the results until after closing?

14

Either he completely forgot to look at the survey, did not have access to the documents, or knew about the problem beforehand but did not disclose the info to me.

15

A real estate agent is not qualified to interpret a survey, and should disclose that fact in a timely basis.

However, a good agent would suggest that you go over the survey with the surveyor until you are satisfied that all your concerns have been met. A really good agent might spot some irregularities, but it’s up to the Buyer to decide how to proceed.

A really good surveyor would have pointed out anything like that, but if you didn’t communicate your concerns to him, how is he supposed to know what’s important to you?

A good agent – indeed, a good title or closing company – should have made sure you received the survey way before closing. A good offer should provide a deadline for receipt and a contingency in case the property wasn’t up to snuff or the deadline was missed. The closing company should not have closed (unless you waived it) if this contingency wasn’t met.

As a Buyer’s agent, your agent was able to advise you on real estate (but not surveying) matters in your behalf. It looks like he didn’t take this very seriously.

Another thing to keep in mind…no matter what the real estate ad or data sheet said, the governing legal wording is in your Offer to Purchase, not a real estate guidebook. If the real estate ad offered a stove but the Offer didn’t mention it, you have no right to complain if the stove isn’t there at closing.

Or if the real estate ad said it was 5 acres and the survey showed only 4, the Offer wording will be most important. Did the Offer provide an contingency to cover that (most boilerplate does)?

To sum up, it looks like the job was sloppy all around, but that doesn’t relieve the Buyer of the ultimate responsibility. I hope you can reach an equitable resolution.

Disclaimer: I am a real estate agent, but only in Wisconsin, and I do not represent you. Other states have different laws and practices.

16

Talk to a real estate lawyer.

17

Surveyors make mistakes. Sometimes they copy the mistakes of people who have surveyed before them.

What does the DEED say? If the deed says 1.37 acres and the survey works out to 0.98 acres, you have a case. If, in fact, you really do have 1.37 acres, but you thought 1.37 acres went to the fence, then you can advertise 1.37 acres when you go to sell.

If you had a buyer’s agent, you may have a case against the buyer’s agent. It was, after all, his/her responsibility to look out for your best interest. Like most real estate agents, they were primarily looking out for their own best interest.

I think it’s time to find a lawyer.

18

Make sure you are paying taxes on the actual/smaller amount of land!

19

Wow. I am kind of flabbergasted by that. A diligent surveyor would have noticed the back fence was off and would have put it on the plat regardless of whether or not you voiced any concerns about it. I’m sorry yours did not.

A fourth option would be that he looked at the survey, but since the back fence wasn’t shown, thought everything was okay. It is really hard to visualize how the plotted boundaries correlate to what’s on the field without taking measurements. He could have done a site inspection, then looked at the plat and thought that it “looked” right, even if it wasn’t. (I hope that makes sense)

This. I would wager that your fenced-in area exceeds your deed area. This type of things happened frequently in my experience.

As everyone else said, it’s time to hire a lawyer.

20

I’m a not real estate attorney, but I have been a commercial real estate agent for over 24 years.

Based on what I have seen happen over the years re these types of disputes the main critical issue is if the land area described in the deed, and referenced in the contract of sale is correct. If it is, you probably do not have much of a case regardless of where the fence line ends, as the land area guaranteed in the contract is what was delivered to you at closing. If the total land area (ie total acreage / sq ft) is incorrectly described in the contract, and includes the wooded portion in the county you may have a case for compensation. Any verbal representations (ie they said very explicitly that the wooded are was part of the yard) made by the sellers or their agent that differ from what is described in contract are going to be difficult to include as a basis for damages. The written contract and what it describes (and was not delivered) is going to govern what you can claim was misrepresented.

Over the years some cases have been won by buyers based on misleading representations that occurred outside the contract descriptions, but they are pretty rare and involved fairly overt attempts to mislead the buyer about inherent, known defects in the property.

Re the survey there are several types of surveys. Inexpensive boundary or “lot” type surveys are typically what residential home buyers get, and they do not include a ton of detail beyond the lot lines. Asking your agent (who typically has no survey training) if the survey “looks good” to them is not going to get you very far, nor IMO is it really going to be something you can hang a legal case on.

If you have some sort of hard proof there was misrepresentation you may have a case, otherwise if you got the total land area in sq ft that was described in the contract you are pretty much done.

See an attorney.