If you’re buying a new construction home, you may not have considered whether the builder had a survey done and is building within the lot’s legal boundaries. But if the builder encroaches on neighboring property, you could end up in an expensive legal mess down the road. Avoid this outcome by ordering your own property survey for new construction. Here’s what you need to know.
What a survey provides
A professional surveyor determines the legal boundaries of a property by researching existing maps or plats and comparing them to mathematical measurements of the property. The surveyor then draws an official plat to be filed with the county government. A particular type of survey called a location survey shows the property boundaries and the placement of existing structures.
Crossing the line
Sometimes builders mistakenly build part of a house or other structures too close to, or even across, the property line of a lot. These encroachments are particularly likely to happen with zero lot line or condominium homes. Where the property lines and structures are tight against each other, the house, driveway or a fence could accidentally be built a few inches or even feet across the boundary of an adjoining property. Or a structure might be within the property line but too close to it, violating zoning setback requirements.
If a buyer doesn’t get a property survey for new construction before closing, she may not discover the encroachment until she decides to sell later and a new survey is done. The encroachment might also come to light when the buyer later decides to add an improvement like a pool and the governmental permit department discovers the error.
A complicated mess
Encroachment issues must be resolved, and doing so is a thorny process.
Multiple parties have a say in resolving an encroachment. First, you as the current property owner have a significant investment in a house or other structures that encroach on your neighbor’s property or on a homeowners association (HOA) common area. The second interested party is the owner on whose property your structure encroaches. The third is the neighborhood association, or HOA, which must approve any agreement to resolve matters. Either the adjoining property owner or the HOA can take legal recourse against you to set things right.
In a worst-case scenario, you could end up in court and be required to remove the portion of the structure that encroaches. Modifying a fence, patio or other structure might require considerable expense.
Removing a house clearly would not be feasible. In that case, you as the owner of the encroaching structure have several options. You can negotiate with the adjoining property owner to purchase the portion of his property on which your structure encroaches. You can reach an agreement with him to create an equitable easement. This would involve the neighbor retaining ownership of the encroached area but granting you the right to use it. The easement thereafter would become a permanent part of the property survey. These options, which involve time and possibly legal expense, require approval of the HOA and possibly of local zoning authorities.
In certain circumstances, the owner of property that encroaches on someone else’s can claim ownership through adverse possession. This legal concept applies only in a specific set of circumstances, and you should not count on it resolving the issue.
Prevent problems with a survey
You can avoid encroachment problems with new construction by ordering a location survey after putting a contract on a home but before building begins. Your survey should be compared to the builder’s as well as his building plans to head off problems. A property survey for new construction can run several hundred dollars to as much as $1,000. But considering the potential consequences of not having one, this will be money well spent.
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