What-if scenario - survey finds our prop is over the line
I've seen similar, but not quite the same, discussions here - hoping that someone can point me in the right direction.
We're looking to do a fully permitted renovation, which will require a survey before we begin. What would happen if we discovered that part of our existing structure (that maybe we're not planning to move, like a retaining wall) is on our neighbor's property?
Would we be required to remove that structure? If our current neighbors are OK with the potential overlap, could this cause a problem if they move and a new owner does their own survey?
Open to having a conversation with an expert here, but I'm not even sure who could answer this sort of what-if scenario. (And grateful for the advice and experiences of the kind folks of BPN!)
Parent Replies
Well, you'd have to discuss it with the neighbor if you wanted to address it at the time of the reno. (You wouldn't have to share the survey with the neighbor automatically.) There are two scenarios, one is you negotiate a price for the land and do a lot line adjustment (record a new property map with the sliver included on it). If the neighbor isn't interested in selling you the property, then yes, I would take it down (and negotiate with the neighbor for an alternate border, like a fence or new retaining wall). Why don't you just start with the survey and find out for sure if it's an issue?
Please consult a real estate attorney rather than relying on advice posted here, however well intended. There are many potential issues here and many potential solutions. That said, the suggestion that you first have the survey done and find out IF you have a problem was a sound one.
Norm Vance, retired attorney who cannot offer you legal advice
If you have an existing retaining wall, fence, shed, or similar structure/fixture that encroaches on your neighbor's property, but you're not planning to touch it as part of your renovation, it's unlikely - but never impossible! - that the city will require you to do anything about it in order to get your permits. The more usual scenario is that an existing home does not conform to current setback requirements (meaning the exterior walls are too close to the property line) and in most cases, what's already there is allowed to stay the way it is, but any portion where you are adding new construction or making major structural changes will have to be set back by the amount now required. So for example, if the side of the house is only 2 feet from the property line but the current requirement is 3 feet, and you want to add on to the back of the house, your side wall is going to have a 1-foot "jog" in it so that the side of the extension is 3 feet from the line. (I ran into this problem on the front of my house, in a porch renovation.) The best source of information to confirm this is your designer/architect or contractor who has dealt with similar issues in the same city where you are. Or you can go to your city's building department to see if you can get an inspector there to answer your hypothetical questions. (The latter is more likely to be possible in a small city than in, say, Oakland or San Francisco.)
Of course, what your neighbors - or someone who in the future buys your neighbor's house - might do about it, especially if they at some point get their own survey that shows the encroachment, is a different question. There are all sorts of ways in which your use of the affected part of their property may already be legally allowed (as one example, if this hypothetical retaining wall encroachment has been there for 50 years and the owners of the neighboring house have known about and accepted it for that entire time, you may have a "prescriptive easement" for it), but if you want to avoid the risk of any future fights about it, you could negotiate a formal easement agreement with the current owners. You would need a real estate lawyer's help with that. Or you could choose to just let sleeping dogs lie; if you ever sell the house you should disclose the issue to the buyer (and give them a copy of the survey) but if you're fortunate enough to have a good relationship with the neighbors and the structure isn't causing problems for either side, you would probably never need to do anything else about it.
There are two steps to a lot line or boundary survey. Field location and marking (pins) of corners which provide the ability to string a line between them as may be required by a building inspector, and a drawing and recording of same with the County. The first may not require the second. Boundary surveys have to derive from some previously known monument or other property recorded survey information and it is possible to get different results coming from different directions.
Understand your terms. Your lot is one thing, your improvements are another. Taken together they are your property.
Worry about it when a conflict arises. Then get professional advice on applicable laws regarding trespass and encroachment for time limitations. For example a simple search result is this - In California there is a 3-year statute of limitations on causes of actions for trespass. It is well settled California law that a plaintiffs' causes of action for damages and for an injunction to compel removal of the encroaching structures are barred by a statute of limitations. or this -
What is the California boundary law?
California law recognizes the right of two adjoining landowners to agree on a specific line or marker to act as the property lines between the two parcels, notwithstanding the legal description in each parcel's deed.
Only specific information will yield proper advice from a surveyor and/or an attorney.