We purchased a lot and built a home on it 22 years ago. The house behind us had been there for 20+ years and had built a retaining wall and fence (for an in ground pool--which is all on their property) on our property. When we purchased the home we understood that was our property but had no desire to ask them to move the wall or fence because we knew they couldn't keep their pool if that happened.
Now we would like to sell our house and the potential buyer is trying to understand their rights to the property. Do we have any after all of these years?
We have refinanced the house once and never had any title issues. Any thoughts?
4 Answers from Attorneys
In connection with your sale, I recommend full disclosure of the issue. Further, you should hire an attorney to draft an easement agreement granting the neighbor a permanent right to keep and maintain the improvements. This could be filed in connection with your property sale.
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The neighbor might have an argument that they acquired the property by way of "adverse possession." The neighbor would have to show "actual, open, hostile, continuous, and exclusive possession" for 15 years. They could also have an argument of a boundary by practical location. That is closely related to an action for adverse possession, in that it is a title-transferring event that relies in substantial part on the deed holder's conduct. They may also argue they have rights to the property by way of easement rights. Since you are aware of this condition of the property, it must be disclosed to the potential buyer. The buyer could decide to have a survey done to understand what property is affected. This could potentially be a title issue. The title insurance policy may exclude from coverage this issue, but may still close the transaction. If the neighbor is cooperative, there can be many solutions to clearing this up amicably. You should contact me to discuss further on the best course of action.
As I think you can see from the previous answers, this is not a simple solution. I see arguments that both you and your neighbor could make, which would be expensive and time consuming for both. I strongly you urge you to contact a lawyer as soon as possible to get advice and work toward a resolution. This is not a DIY project.
Attorneys here are not to solicit clients. I urge you to confer privately with an experienced attorney at this time and she can advise you. There appears to be potential for a cloud to the title: Do seek attorney assistance.
Tricia Dwyer Esq
Tricia Dwyer Esq & Assoc PLLC
Minnesota Attorneys at Law