Bought a Home with a Wall That May Be Encroaching, What Should My First Step Be

[NewOwner]

My question involves real estate located in the State of: California

I'm a first-time home owner, four months in. Just the other day my very friendly new neighbor mentioned that the former owner of my home built her back yard wall several feet over his property line several years ago. I asked him if this was a dispute I needed to resolve. He said no, he did not care (the alleged encroachment is into his largely unusable/unused back lot/yard that is essentially wooded hillside.) He said he "kind of gave" my former owner a hard time about it when she first built the wall a few years ago, but he didn't pursue the matter.

This neighbor did not seek me out to inform me of this. I sought him out just to meet the neighbors, and very late in the conversation he mentioned the encroachment in passing, not in urgency, and to reiterate: when I asked "is there a dispute I need to resolve?" he said no.

Here's where it gets a bit interesting.

During escrow the elderly seller had hinted at an encroachment issue by not answering an encroachment question on the form. When I pressed her agent and her for details, her agent spoke to her. He later reported back to me explained that - and I may be hacking up the terminology here - there was some kind of standard county easement relating to access to a power pole in the back lot area that she did not understand, and there was no encroachment issue.

I know now that she likely did have foreknowledge of a possible encroachment offense with her wall, and withheld this from her disclosures. Prior to closing my only due diligence was asking her two adjacent neighbors if they had any boundary issues with the seller. They both said no. I also called somebody at the city to ask if they knew anything, they said no. But I don't know if I was talking to the right person, frankly.

But I never did speak with this other, third neighbor who owns the lot behind her. (I was misled by one neighbor who told me that lot was city property! It is not, as I now know.) Until now.

I'm wondering what the best first step would be here, my main objective being not to awaken any sleeping dogs, and make matters worse. I have what seems to be a very understanding neighbor who, if he is correct and my wall is encroaching, could make demands on me, but instead seems unconcerned.

I don't want to alarm him, or give him ideas, but I want to hammer out an agreement, either a lot line adjustment or usage agreement. But I fear that I might give him ideas and make matters worse.

Where to begin? Surveyor? Legal counsel advisement? I have long term plans to stay in this house. But one day one of us will sell, likely my elderly neighbor, and this issue will become an issue.

[yyz0]

I'm wondering what the best first step would be here, my main objective being not to awaken any sleeping dogs, and make matters worse. I have what seems to be a very understanding neighbor who, if he is correct and my wall is encroaching, could make demands on me, but instead seems unconcerned.

I don't want to alarm him, or give him ideas, but I want to hammer out an agreement, either a lot line adjustment or usage agreement. But I fear that I might give him ideas and make matters worse.

Where to begin? Surveyor? Legal counsel advisement? I have long term plans to stay in this house. But one day one of us will sell, likely my elderly neighbor, and this issue will become an issue.

It's good that you are thinking "long term" here as the neighbor could sell and with a new owner all bets are off so to speak. One thing to consider is the cost, now or future of any moves you make.

But understand that without a valid survey you are just going by the neighbors opinion about the property line. "ONLY" a valid survey will prove if the neighbor is correct about the location of the wall or not. But you'll never know unless you get a survey done, if you do have a survey done let the surveyor know about your specific concerns about the location of the wall.

After you have verified that the wall is really on the neighbors property can you consider a next step.

[eapls2708]

Sometimes neighbors will say something like this because it might be fun to rattle the new neighbor's cage and see how they will react. One of my neighbors tried this with me by telling me about a private roadway easement running through the woods on one side of my property to the back of hers, and that she had informed the previous owner of my property of this when he built the fence. She either forgot or didn't take into account that I'm a surveyor, know where the monuments are, where the property lines are, where the fences and easements are, and that I knew how expensive it would be for her to build that road along the existing natural drainage that runs along that line... that is if the county would even approve it. Anyway, I told her that I was aware of the easement and would gladly move the fence from the property line to the edge of the easement just as soon as she has a building permit for the road.

I don't really know why she brought it up since she has no need for a road there and would almost certainly never be able to get a permit under current environmental review guidelines. I suspect she just wanted to find out if I was going to be an agreeable neighbor or one quick to enter a dispute. We've been on good terms since.

So I tell you this for two reasons: 1) your neighbor may not really be certain that the wall encroaches but wanted to see how you would react, and 2) you should know with certainty where your boundaries are before you respond in any meaningful way by formalizing an agreement for the existence of a possible encroachment or in denying that it is an encroachment. You want to acknowledge your neighbor's rights while not denying any of your own, while at the same time preserving the rights of each in any agreement that you might think to execute.

I agree with yyz0 about your long term view. If the wall actually does exist, a well written agreement will help to protect your neighbors title rights (if the wall is actually encroaching), and will serve to notice any future owners of either property that a valid agreement was made, hopefully heading off any rigid stance about the need to "get it off my property".

Your first step is to determine whether or not the wall is actually encroaching and by how much. The only way to do that is to have a survey performed. Depending upon where in CA you are, the way your boundaries are described in your deed, the condition of the property (manicured lawns, open field, acreage covered in dense brush, etc.), the history of surveys performed in your neighborhood and a couple other factors, you can plan on spending as little as a few hundred up to several thousand on a competently performed boundary survey. Fortunately, it doesn't seem that the matter is one that needs to be dealt with immediately, so you can take several months to work this into your budget if necessary. When you do hire a surveyor, make sure that you have them locate the wall and depict it in sufficient detail on the map that you can detemine precisely where it is relative to the nearest boundary line/corners.

If you find that the wall is indeed encroaching, you may have several options, primarily 1) move the wall onto your property, 2) a written agreement for permissive continued existence of the wall, 3) an easment for the wall for as long as it may exist. or be required for lateral support of portions of your property, 4) enter into a Lot Line Adjustment, which is an administrative process by which you and your neighbor agree to move the boundary from its current location to another that you each agree to, or 5) leave the wall as it is, hope that no dispute arises while you own the property, and hope that if you ever sell it, that the prospective buyer is not concerned about it after you've disclosed it.

Of those various options, the Lot Line Adjustment allows the wall to remain as is and cleans up potential title issues that may arise due to encroachments. Check with your City or County as to their review fees and check with your surveyor as to his or her fees to prepare necessary drawings and descriptions.

Short of the LLA, the easement gives you the most protection with regard to not having to move the wall at some future point. You can write it such that once the wall deteriorates to the point that it would need to be replaced, that a new one will be placed fully onto your property and the easement then automatically extinguishes, or you can write it such that the wall can be maintained and replaced in it's current location. Unless there is specific provision in the recorded easement deed for it, easements are generally not revocable.

An agreement for permission to leave the wall in place is much like an easement except that permission generally can be taken away at any time for any reason. A well written agreement may be able to limit the reasons permission may be revoked and specify a time frame for compliance once permission is rescinded, and will have pretty much the same effect as a revocable easement. Oftentimes, written permission is a good solution.

A Lot Line Adjustment will obviously cost money, at least in agency review/approval fees and surveying costs, and maybe to buy some amount of land from your neighbor. Depending upon site conditions and agreement of your neighbor, you can swap equal land areas and thus not have any significant effect on either property value, or you might purchase whatever square footage in whatever configuration is needed to accommodate the wall. Since it's your encroachment, expect to pick up the tab for surveying and governmental fees.

With the easement or the written permission, you will have some costs as well. With either, you should have an attorney with experience in such matters advising you. For an easement, since it provides a title right for you and creates a record encumbrance on the other property, you will probably have to pay the neighbor some amount for that right. Written permission, either in the form of a letter from your neighbor or as a written agreement being revocable, doesn't create the same level of encumbrance on the other property, so you may not have to pay anything to your neighbor, but that largely depends on him. Again, your encroachment so if the legal and survey costs are the only ones involved, expect to cover them yourself.


As to the little old lady that sold you this property, it sounds like she did know of the encroachment or was at least made aware by her neighbor that it may be an encroachment. In CA, the seller is required to disclose such knowledge. Additionally, if the RE agent was aware that there is or may be an encroachment, he or she also had the duty to disclose that knowledge. If either knowingly suppressed that knowledge, you probably have some recourse to recoup your expenses. For the RE agent, it can mean trouble for their license. The RE licensing board takes such things seriously. Talk to your attorney about the potential for recovering costs to rectify the matter of the encroachment from the seller, her RE agent, and/or her or your title insurance company. The reality of being able to do that is going to depend at least in part as to whether you can show that either knew or should have known about the encraochment and deliberately witheld that info from you.


Congrats on the new home. Good luck with resolving this in a way that's acceptable to both you and your neighbor. Remember through the process that one of the most valuable parts of home ownership is having good neighbors.

[NewOwner]

Thanks to both replies.

I have a friend who is an attorney with experience in this area, and will be speaking with him. I have also ordered a thorough survey that will mark my four corners, record the survey, and locate the wall so I know exactly what the facts are.

I have good neighbors and wish to keep it that way, so I putting lots of thought into this. I don't want to stir up a hornets nest. I have long term plans, and a huge part of that equation is happiness and peaceful co-existence. I'm very aware of that. Since the wall has been in place, and apparently uncontested for years, I suspect the plan of action may be quiet inaction; let the clock keep ticking in my favor until I have to do something about it. We'll see what the attorney says.

thanks again.