This comes up quite often in Florida, the Buyer orders a land survey and it shows an ‘encroachment’. Now, if there is a loan in use then the lender typically will NOT accept a lenders title policy with an exception for encroachments and thus the title agent needs a survey so that they can certify that there are none, or, the Buyer ‘just wants one.’ The title agent orders it but often it is done very late in the process, like right before Closing. So, it arrives and it shows say that the fence in on the subject property here but on the neighbors property there, or the fence is on a utility easement, or a shed is in the utility easement. What happens?
These are the sections of the Contract to look at…
First, the property line example. Was the fence installed by the Seller or their predecessor in the chain of title? Basically, is it the neighbor’s fence? If it’s the neighbor’s fence and the Buyer or Title Agent want it moved then call a lawyer. If it ‘goes with’ the subject property then it is the responsibility of the Seller to move it. If (IF) it is a cash sale, so an exception to the title policy, or the Title Agent can and will call it a minor encroachment and certify it for the Lenders Title Policy then it may stay where it is as long as the Buyer and Seller agree.
If it is built in an easement then the question is: Does the easement language allow it to be there? Was it permitted and if so did the plan submitted with that permit show it in the easement? If so, this would be an indication that it is OK to stay. If not then it’s the same answer as above.
