Buying or Selling a Home/QUESTION PROPERTY LINES

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QUESTION: Lizz Hi hopefully you can help me, its in regards to properyy lines.   My mom lives in NY, she is Elderly.      New neighbors moved in next store and cut out a piece of property for patking.  My question is if I get a survivor and find they have encroched on her property, what can be done. Also they have the house up for sale.  Can my mom get a lawyer for sale and theft of her property, how would you handle this. Thanks for your help, Ken

ANSWER: Hi Ken,
Sorry for the delay in responding.  Real estate has been really busy this week, and this is the first opportunity Iíve had to send you a detailed response.

If you determine that your Momís new neighbors have encroached on her property, you can force them to restore the property to its original condition, but Court action may be required if the neighbors do not voluntarily agree to do this.

The way to determine if there is an existing encroachment is by having a survey done.

If your Mom does not have a current survey and plat, you can first check with either the RMC (Register of Mesne Conveyances) or the Clerk of Court for the county in which your Momís property is located and determine if there is one recorded.  

You might also want to see if you can locate a survey for your Momís neighborís property.  If they recently purchased, itís very possible they had a survey done which might be recorded at the RMC or Clerkís Office.  

If you are not familiar with how to research plats at the RMC or Clerkís Office, there are employees in these offices who should gladly help you locate what you want and make copies for you, for a nominal charge for the copies only.  You will need the property address, ownerís name, and a tax identifying number if possible.  If you do not have tax identifying numbers, donít worry, this can also be obtained at either the RMC or Clerkís Office.

If your Mom does not have a current survey and plat and there is none recorded of record you can use, I suggest you contact a surveyor and have one done on her property, asking the surveyor to place a number of stakes along the side line in question and ďstringĒ the line.  Be sure and take photos on the day the survey is done, documenting the actual property line.  This way, you will have accurate photos in case someone should move the stakes later.

If the survey reveals that the neighbor has encroached on your Momís property, then I would suggest next having your Mom send a Certified Letter to the neighbor (with a return receipt requested), giving Notice to the neighbor that they have encroached; attach a copy of any supporting survey and plat; and request that your Momís property restored to its original condition within a reasonable period of time.

If you need help with a letter, you may want to contact an attorney to send this out for you so that any time period for a response and corrective action by the neighbors complies with NY law.

As information for you, unless sold or otherwise deeded away, property lines and their associated legal description do not change.  The legal description of your Momís property can be traced back to previous owners, and the property lines and legal description should generally always be the same.  (Legal descriptions are taken from the plat done by the surveyor.)

Have you or your Mom considered approaching this neighbor and discussing the matter with them, explaining that you believe they might have encroached on your Momís property?  The path of least resistance sometimes can yield positive results.  If they are not responsive, then you absolutely know what you have to do, which I have outlined above.

If you get to the point of a Certified Letter (from your Mom or either an attorney on her behalf) and you have your documentation of an encroachment with no response or cooperation from the neighbors, I would most certainly recommend contacting a reputable attorney to assist you at this point.

Finally, take a number of photos now documenting what you believe to be the encroachment.  Be sure and take some shots straight down the property line.  Also, see if you can locate some photos of your Momís property ďbeforeĒ the suspected encroachment.

Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth


---------- FOLLOW-UP ----------

QUESTION: ELIZABETH,  Hi first of all I want to thank you for all the information, I just have a couple more questions in regards the neighbors house is going up for sale.  When a house goes up for sale do the buyers always have to get the land survayed.  Also if someone. pursues legal actions can this hold up the sale of a house.  Again I appreciate your help.  Thank you Ken

Answer
Hi Ken,
When residential property is sold, most Sellers normally do NOT have a new survey done.  

When a property sells, the lender being used for the buyerís loan will state whether or not they will require a new survey.  If there is a recent survey of record, a lender will generally NOT require a new survey.  However, a buyer (if smart) will ALWAYS have a new survey done, UNLESS there is a very recent one on file at the Courthouse and no obvious or suspected encroachments or projections are noticed.

Legal action can, most of the time, hold up the sale of a house if a Lis Pendens is filed by the attorney bringing the action and there is a legitimate issue to debate on any issue affecting title or a possible lien against the property for sale.

A Lis Pendens is a legal document, normally drawn up and filed of record at the Courthouse by an attorney bringing a lawsuit, stating that legal action has been brought that could affect title or otherwise create a lien on the property for sale.  By filing the Lis Pendens, any title search prior to a scheduled closing would reveal pending litigation, thereby putting any buyer (usually via a closing attorney) that there is pending legal action involving the property for sale.

Hope this helps.  Good luck to you, and write again if you think of other questions.
Regards,
Elizabeth

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liznarr

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I can answer questions relating to the purchase and/or sale of residential homes and land, including what a really good agent should be expected to do and/or not do; where to turn when problems occur; and questions regarding disclosure. I`m a Licensed Realtor in the Southeast since 1984 with designations of Broker, GRI, CRS, and CBR (Certified Buyer Representative). Current active and Life Member of Million Dollar Club, Certified by State Real Estate Commission to teach Pre-Licensing and Continuing Education courses, specializing in Agency. Currently serving on Grievance and Professional Standards Committees, and Education Committee in past.

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