Real Property Appraisals/Missed set back on property
We have recently bought a home which is on almost an acre of land, and we had purchased it because this would let us move our storage items into a shed that was to be built on the property and to store our RV on the property instead of paying for both. The problem is that when we went to have the shed built the county building permit office informed us that the property has a 100 ft. set back from the rear property line (which is in a dry creek) which renders my entire rear yard useless. We were near informed by the title company of this fact. No where in the title policy/search is this fact mentioned, they do mentioned the side easements. My question is do I have recourse?
This is an issue with several parties to this transaction. First, you need to pull out the Title Report you received and see if any easements are delineated in the Report. You may not be able to discern any easements, Legal Descriptions are like reading ancient Greek. You may have to have a professional go over the Title Report - see my comments about the Surveyor below.
In any case, as you have noted, the Title Company appears to be at fault for not disclosing this issue. Second, both agents, listing agent and selling agent may be at fault for not confirming this.
Third, if you obtained a loan, the appraiser may be at fault for not disclosing this easement. Unfortunately, the appraiser may be able to wiggle out of this by claiming that he/she didn't have access to a Title Report.
To get this issue resolved, you need to do the following, in order: The first thing you need to do is go to a Title Company, not the one who issued the Title Insurance, and ask for a copy of the Public Records information for your property and the Assessor's Plat Map. Look carefully at the Assessor Plat Map to see if this 100 foot set back is delineated on the Plat Map as an easement. If it does show as an easement, the appraiser is clearly at fault because he/she should have reviewed the Plat Map and noted the easement in the appraisal.
Next, go to the City and sit down with both the Building Department and Planning Department. You want to ask them for any documentation about this "set back" or "easement". You stated in your question that the City "informed" you about the 100 ft. setback. If they haven't given you documentary evidence, require them to provide you with the evidence of the setback. Be sure to get any written documentation and maps that are available.
Next, you are going to have to hire a surveyor to survey the set back and plot it on a diagram of your lot. Even if the City documents include a survey, you want to have documented evidence of the set back. When you approach the parties at fault for reimbursement for this error, you are going to have to have proof of this set back and show how it impacts your property.
This is the point at which you're going to have to decide whether to hire an attorney. I think you should get legal representation in order to press the diminution in value caused by the set back/easement that reduces your properties useable lot area. Remember the old adage: "he who acts as his own attorney has a fool for a client".
An attorney will be able to advise you how to press your case. At some point you're going to have to get a very experienced appraiser to estimate the loss in value from the set back/ easement. Wait until your attorney advises you to get this valuation.
I wish you the best of luck in getting this issue resolved.
John C. Carlson
John C. Carlson Real Estate Appraisals
Victorville and Diamond Bar, CA