Reviewing Property Survey Before Taking Title Can Prevent Headaches Later

Q: We bought a home last year. Beyond the back yard was a large vacant lot. The fence between the properties was old and falling down.

Last week, a man came to our door and said the fence was on his property (the vacant lot) and that his property extended approximately 10 feet into our yard. He told us to take down the fence within a week or he would do it at our expense.

We contacted the previous owner about the property and the fence. He said he remembered the old fence, but that it wasn't part of our property. He never said anything about this when we were looking at the house, nor is it written in any disclosure. We bought the home partly because of the large back yard. We checked the survey plots and it appears the owner of the lot is correct. Do we have any recourse? To the best of our recollection, we never saw a survey before we went to settlement.

A: You and the settlement attorney who conducted the closing made a big mistake in not obtaining and reviewing a property survey before you took title to your house.

A title search should be performed prior to closing, whether the buyer is paying cash or obtaining a mortgage. This is generally arranged by the title attorney or company that will be conducting the settlement. The title search will disclose matters of public record: Who currently owns the house? Are there mortgages that have to be paid off? Are there any tax liens filed on the land records that create "clouds" on the legal title?

But the title examination does not give a potential buyer a complete legal picture of the property. Public records do not disclose unrecorded easements, such as a right of way to get to a main road or a lake. Nor will a title search reveal problems regarding the location of boundary lines, which is the issue you are facing.

Are you sure that you did not get a survey when you went to settlement? Review the settlement statement (the HUD-1) that you received. There should be a line-item charge for a survey (line 1301).

If you did receive -- or at least pay for -- a survey, then you should contact the person who conducted your settlement to discuss the situation. Settlement attorneys and title companies are obliged to alert potential buyers to any problems regarding the property.

Who is this gentleman who just knocked on your door? Have you confirmed that he in fact owns the property behind your house? You should politely ask him for identification, so that you can check him out. For all you know, he is a scam artist who wants to take advantage of you.

You should also consult a lawyer, because you might have some defenses that would enable you to keep the entire back yard. For example, you should find out from your seller how long he lived in the house, and how long that old fence was there. There is a concept in law called "adverse possession," also known as "squatter's rights." In the District and Virginia, if the fence has been on the property for at least 15 years, and you and the prior owners have used the portion of the lot that your neighbor is claiming, you may be able to get a judge to rule that you now own the land. (In Maryland, the statutory period is 20 years.)

To prove adverse possession, you must show that your use (and that of prior owners) has been "open, notorious and hostile." These are the three legal buzz words that courts look for to determine whether to take property away from one person and vest ownership in another.

If your neighbor has given permission for someone to use the property in question, the court will not rule in your favor, because the use was not "hostile." But the fence will be very helpful to you, since it is clearly "open," for all to see.

Litigation is time consuming, expensive and uncertain. If you are satisfied that your neighbor is legitimate, you or your lawyer may be able to negotiate a deal so that you can buy the property, instead of taking your chances in court.

Do you have a case against the seller? You have to read the sales contract very carefully. The typical contract used in this area merely states that "title is to be good of record" and insurable by a recognized title insurance company. I presume that you were able to get title insurance when you went to closing.

However, sellers in all local jurisdictions are required to provide some form of disclosure to their potential buyers. Virginia and Maryland allow a seller to disclaim most items regarding their house instead of providing a full disclosure. In the District, however, a seller must answer this question: "Does the seller have actual knowledge of any zoning violations, nonconforming uses, violation of building restrictions or setback requirements, or any recorded or unrecorded easement, except for utilities, on or affecting the property?

Review all the legal documents you received at settlement. If your seller checked off "no" on that question, you may have a case against him, because he has now admitted that he knew about the fence problem. But that won't help you get the land back. Keep in mind that your seller may be your best witness should you plan to sue for adverse possession, and suing him will not help your cause or your case.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com.