Re: Bought a Home with a Wall That May Be Encroaching, What Should My First Step Be
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.
I'm a surveyor, not your surveyor & not an attorney.
Advice is general survey, not legal. Hire a local professional for specific advice.