Expert: Toni Yates - 4/1/2009

Question
   My wife and I have been under contract on a home for about a month and a half, we are very close to closing.  The home beside the home we are purchasing just recently went up for sell, and they paid to have a survey done which revealed that their fence and part of one of their storage buildings is on the land we are buying.  The current owner of "our" property just made some sort of deal with the neighbors, which included him giving them ownership of the land that the fence and building is on.  This caused us to have to wait for a survey to be done of the property to close the loan as well as wait on a new deed.  My question is, is it legal to knowingly make changes to the deed of a property while it is under contract?  Could the "profits" that were received by the seller be recouped by the buyer, since our contract was for the original deed?  Could this be considered breech of contract on their part, and would I be able to get my money from them for appraisals, insurance premiums, good faith, etc.?
                               West Virginia

Answer
Hi-
Thanks for the question. In my opinion, this situation is a material fact which should have been disclosed to you and your input as to how it should have been handled should have been obtained. On the other hand, you most likely did not assume that you would be getting a portion of the neighbor's shed and fence? Be glad that they cleared up the encroachments prior to your settling. If their "agreement" changed the total acreage from what it was represented on the listing and contract, you may be entitled to a a price adjustment. My advice is to consult an attorney. Hope this helps. Best, Toni