Home Mistakenly Built on Our Land - How Do We Proceed

[Hopi]

My question involves real estate located in the State of: South Carolina
We just found out that another party built a house in 2004 on our property in SC. We reside in MA. We called the SC local Assessor's office to start the building process for our dream retirement home, only to find out that there was already a house on the property built by someone else. We flew down to SC last week, had a legal survey done and found out the house is definitely on our property. We have owned this 1 AC since 1984, have paid the taxes every year and are now devastated as to what we should do. The other party owns a 4.5 AC vacant lot several acres down from ours and said "they made a mistake". Their home is mortgaged as being on their property. Can anyone offer any advice as to how to proceed legally? Does this house on our property now belong to us? Does the other party have any claim to it? And how about the bank that holds the mortgage to the house that is not where they think it is -- what are their rights? We will retain an attorney at some point, but would like to have an idea of what our rights are. Thank you.

[jk]

you need an attorney sooner rather than later. This is a real mess.

curious question: is the house situated on your lot so the placement is legal? Is it placed with due regard to your actual lot lines?

any chance of you being willing to swap your lot for an equal amount of property owned by the "owners" of the house?

[Mr. Knowitall]

There's case law indicating that, if possible, the people who built on your lot may move the home they built to their own lot. See, e.g., Mid-State Trust, II v. Wright, 474 SE 2d 421 (1996); C & S Nat'l Bank v. Modern Homes Const. Co, 149 SE 2d 326 (1966). Although the case law doesn't expressly address the issue, I would infer that they would be obligated to restore the land where the home is situated to its original condition.

The mortgage is against their lot, not yours, but as the Mid-State Trust case indicates the lender appears to have similar recourse in the event of foreclosure.

As jk indicates, if the lots are roughly equivalent, some form of exchange (and, of course, transfer of the mortgage) may be the simplest resolution.

[Hopi]

As I understand it, the other party's house is completely on our property with part of their cement driveway on another abutters lot. We looked at their acreage while we were in SC and a lot of it appears to be swampy and not level. Out lot was partially cleared with a pond and septic tank on it. I really don't understand how or why these other people made this kind of mistake. We had had plans for years to put a log cabin on this property and retire down there. As an aside, the land also has sentimental value for my other half as he grew up in this area. I don't know that we would be willing to do any kind of swap with this other person -- it feels like they stole the property from us!

[jk]

-- it feels like they stole the property from us!

sounds like you have given up.


You are in the right here. I was only suggesting a few alternatives that might have made the resolution a bit easier to make happen.

Have you spoken to these people? have they offered any solutions?

If it were me, I would speak with them. If you like the house and are willing to purchase the building, you might be able to get it cheap. If you are dead set against that house, then I would start negotiating how they are going to remedy the situation. If moving it is a possibility, then that would seem to be one of the best options for the other party. Regardless, you have a right to claim your property and expect it in the same condition as it was when they made their mistake.

and again, an attorney is strongly recommended. There are possible title issues that would need to be verified once this is fixed.

[Hopi]

We did approach the people initially and at first they didn't believe us and said they had built on their own land. We had already been to the assessor's office, had copies of our deed, plat, aerial pictures, etc. It was only when the surveyor showed up that they called and said a mistake had been made. They said they may be willing to swap some of their land for our parcel; however, when we looked at their land it does not appear to be what we want or even buildable for that matter. We left it as we will get back to them as to what we'll do (which of course we don't know what to do at this time!). I think we'll probably have to retain a lawyer in SC.

[Scott67]

Retaining the attorney and starting proceedings is important to do sooner rather than later. With your plans to build a retirement home, I expect you want it to be in accordance with your dreams, not theirs. Unless you really like the home they've built (maybe it's more house than you were planning on) you should officially, through the attorney, notify them that the house needs to be removed and the property restored to its previous condition. It really is irrelevant to you whether they move it or tear it down.

[mamabear2102003]

Atty, ASAP. There are many out there that will give a first consult for low/no cost. Who issued the permits, did any required inspections? Did the mortgage company require a survey and inspect the property prior to the mortgage being given? How did the current homeowner make such a mistake?

When we (and our families) built our homes, the paperwork and verifications were involved and time consuming, with checks, dbl checks and even triple checks on each step involved. Not sure of the laws where you're at, but I can't believe that there are no checks and balances in place to avoid situations such as this. A good real estate atty is going to be your best bet to reclaim what is yours (along with having s/he ask for all your legal costs to be paid by the other party).

[Hopi]

These are the same questions that I have too! The Assessor's office did not really provide any of this information to us. We live in MA, not SC (the property is located in SC) and we do not know what the laws are in SC. I do know that here in MA you have to "dot your I's and cross your T's" to the letter when building a house. I really don't know what happened or how these people were able to build. Seems to me like this should never have happened, especially with the building permits having to be in order, the utilities being put on, and more so with the bank that mortgaged it. I agree, a good real estate attorney is key at this point.

[LandSurveyor]

This is another thread which shows how much money can be saved by refusing to order and pay for a survey. No realtor, nobody in the asessor's office, nobody at the bank or mortgage company, nobody in the building permits office can give an opinion as the to location and extent of a parcel of property on the ground.

As our OP has had a survey done, and now knows the facts of the situation, there is little left to do:

1. Decide what outcome you want in this situation.

2. Send your lawyer to get it.