WHAT DOES THIS MEAN?
The encroachment is a title issue, beyond just standard exceptions, and Buyer has the right (but not the obligation) to terminate.
GAR F201, Section B(1)(a)-(b) states that the Seller must warrant good and marketable title subject only to standard exceptions.
WHAT SHOULD YOU DO?
1. ASK QUESTIONS. Speak with an Attorney to determine if the survey is correct or that a solution isn’t already present;
Surveyors often do not perform a title exam and the issue may have already been addressed. The attorney may look at the recorded plat, agreements previously recorded, or even a quiet title action that resolved this previously.
2. REVIEW. Evaluate the survey for errors and speak with Surveyor;
- Did the surveyor find monuments on site or did they place new ones?
- Is the plat very dated and lacking exact coordinates?
After going through the above analysis, several solutions may be appropriate given the nature of the encroachment. For example, an Encroachment Agreement may be a good solution for a fence that crosses the Boundary Line. However, in the above situation (building encroachment) or even a driveway encroachment, it may be best to convey a portion of the property via Deed to avoid future issues - a Boundary Line Agreement would also be a good option.
Ultimately, these situations require more interactions from the parties involved (and the neighbors!) and the help of an experienced attorney to spot issues and execute on solutions.
Courtesy of Christina Ross, Attorney, Campbell & Brannon