Expert: liznarr - 4/10/2011

Question
Hello,

I am a first time home buyer and I have made an offer on a home and then had an inspection and survey completed.  The survey showed that the church to the right of the property has their air conditioning unit over my property line (the church used to own the property I am trying to buy.)  The survey also showed that the neighbor's fence on the left side of my future property is 6 inches onto my property (for about 5 fence posts.)  I do not really mind either of these things because it's only a few feet in both instances.

The current owners did not have a survey done when they bought the house.  I did have stakes installed when the survey was done.

I am at a loss for what to do.  I really like this property and I am definitely still interested.  I talked to the title attorney I am working with and she said I could try to make them move the fence which she did not recommend since I want to have a good relationship with my neighbors.  She also said that moving the air conditioning unit would be very troublesome for the church and would also cause bad relations.  I asked about possibly writing a letter to both the church and the neighbors that states that they acknowledge I am the owner of the property and that they must ask permission before coming onto my land and that if the air conditioning unit or the fence were removed they could not be replaced on my property.  She seemed to think this was a bad idea and suggested that I since I don't mind about the encroachment that maybe the people who buy the house from me when I am ready to sell won't care either.

However, that approach seems really risky.  I also read a little bit about adverse possession and am mildly worried about that (as the property is in PA the adverse possession rule is 21 years.)

I was just wondering if you have any advice about what to do next?  Is a letter okay?  Is it really nothing to worry about?  Will I even be able to get my FHA mortgage?  I am stressed out and don't know what to do next.

Any advice would be great!

Thank you,
Katie

Answer
Hi Katie,
I agree, to an extent, with the title attorney you spoke with as far as NOT removing the fencing and AC unit.  Keep in mind, however, that I am not an attorney, and my comments below are NOT intended to be legal advice, but rather 26 years of real estate experience.

For starters, Adverse Possession is when another person or entity uses your property openly, continuously, notoriously, in a hostile manner, and WITHOUT your permission.

Regarding Adverse Possession, I have always been schooled that if you GIVE PERMISSION for the use of your land (as in the case of the church AC unit partially on your property), this VOIDS any adverse possession claim.  It goes without saying that any permission you “give” should be documented and in writing, as in a certified mail receipt or a properly notarized document.  

Prior to or shortly after closing on the property (and this would just be my personal style of handling this), you might approach the church people and let them know what your survey disclosed; provide them a copy of the survey; and ask that they sign a simple document which states, as you said, that the AC unit can remain on your property until such time as it has to be replaced (or, say, a maximum time of 25 years from date of installation), and then it must be relocated on their property.

What’s the big deal about being afraid of offending someone?  It was probably an honest mistake, and unless the church people are obnoxious, they should not take offense at your mention of this.  If they were to take offense, you are simply protecting your property rights.  If they don’t want to sign the document, you would then have to decide if you want to legally Notice them to remove their AC unit from your property.

On the fencing that is on your property line, most attorneys in my area would say to whomever installed fencing on another’s property, “Thank you for installing a fence on MY property, which now belongs to me.”  With the fence having existed prior to your purchase, I don’t know if, or how, this would affect you, but it is still on your property and could not legally be removed without your permission.  

Unless the fencing is unsightly or there is some other reason you would want it taken down, you could leave it as-is.  This is a very common occurrence, since most fence installers (and also owners) do not have their property lines marked when putting up fencing.  Again, just my style, but a personal conversation with this neighbor to inform them of what you have discovered would not, in my opinion, be out of order.  

The resulting attitude and response you receive from neighbors on both sides all depends on your approach.  I’m sure you’ve heard the saying, “You catch bees with honey, not vinegar,” and this is what I am referring to.  A non-threatening approach in a friendly manner should not offend any reasonable person.

In my state, even if someone has encroached on another’s property line, the owner of the encroached-upon property could not (without proper legal notice) simply destroy the (in your case, fencing or AC unit) encroaching object by removing/destroying it prior to giving them an opportunity to remove it.

I hope the above is helpful.  Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth