About once a week I am presented with something someone did at a closing that they thought had no consequence at the time, but later seemed really dumb. Often it was. The syndrome is represented by the guy who went to close on his water-front house, the dream house of a lifetime. At closing he was shown a survey of the property. The survey revealed that his neighbor’s deck was built several feet over his property line and actually prevented the use of several very valuable water front feet of land. When he saw his tax bill he was reminded that the Property Appraiser knew just how valuable those feet actually were.
At closing the closing agent did just what he or she should have done. The Buyer was asked to sign off on the survey to indicate that he had seen the issue, and he elected to close anyway. No one at the closing table was disappointed.
When he got home, he began looking at the value of waterfront and wondered whether he had accepted a situation that he should have been more careful about. [The same thing happens incidentally, in rural property when an owner gets a survey and discovers that the neighbor’s fence is located on the owner’s property, sometimes by 50 or more feet.] Both those owners will find themselves in a law office asking the question, “Is this really a problem, and if so, what can I do about it now?”
You are the lawyer. Is this a problem? A big problem, or a little one, and what can be done?
You are about to learn why psychology is as important a subject for a lawyer as contracts or real estate. My mother used to make “beef stew”. I call it that even though no name really fits. She took whatever she had left over, pressurized it, and called it stew. There was no recipe because you never knew what would be in it. (But I never remember a time when it wasn’t delicious.) That story is only related to this article because you never know what you will find in the mindset of two adjacent neighbors. Your job will be to be to deal with whatever that is, to make your own soup, with no recipe. You will just do what you can to make sense of what you’ve been given.
Start with the knowledge that surveys are sometimes just different. It may be that neither can be proven to be wrong, or if it can, to prove that one survey prevails over another usually costs more than the property is worth. But no matter whether an agreement can be reached or not, if one owner occupies property owned by another, there is a problem. Unless the overlap is inarguably insignificant, one day, the overlap will come up again. The issue will arise in an adverse possession action, in a trespass claim, or some other claim in which one adjacent owner sues his neighbor. That will slow down closings, cost lots of money, and alienate the neighbor you will hopefully prefer to remain friends with.
To prevent the issue from just sitting there waiting to explode, the matter can be fixed by the two adjacent owners signing an agreement called an “Acquiescence Agreement”. That agreement will recite that the owners see the problem, jointly agree to a location of their common property line, agree not to move fences or decks, and that each waives any claim to the property beyond the “real” property line, to which they agree in writing. Normally the agreement will provide that any improvement may continue to exist until it must be rebuilt, or until some future date, at which time it will be located to the agreed property line.
That an after-the-fact agreement must be confected proves the rule that there is no dumb question asked before, or even at, closing.
Your lawyer will know that this agreement itself takes some artistry, but he also knows that an agreement like this can help prevent a neighborhood gun-fight over a few feet of land.
Now you too can charge your neighbor for really good legal advice.
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Mike Chesser is President of Chesser & Barr, P.A. and Old South Land Title, Inc., both in Shalimar, Niceville and Crestview. He is Board Certified in Real Property and Local Government Law and can be reached at mike@chesserbarr.com. All articles are indexed and can be found online at www.chesserbarr.com/blog/