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  1. #11
    Join Date
    Nov 2013
    Posts
    6,699

    Default Re: Land Survery Shows Half My House on Neighbors Land - Bought 7 Years Ago

    Quote Quoting Cowsgonemadd3
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    But where does that even leave us? Can we even sell the home as is?
    The most important questions that needs to be answered since you wrote this:

    This house was built by his dad years ago. It might be possible that it was built on the grandads land partially. It was sold to me not under this assumption. No mortgage company would offer a loan on a house like this without fixing it first.
    The question is, was the house built before or after granddad subdivided the land? Were the two parcels once under common ownership before the severance into two separate lots? And was the driveway there serving both lots before the lot was subdivided?

    It looks to me, from the survey you posted, that when the lot was created, they tried to carve out exactly one acre of land. But they got it wrong making the easterly line cut through the house. It looks like that no actual survey was done. It was done on paper. And if the deed only refers to bounded by, what is the easterly line bounded by? It's not the driveway, it's not a road, it's not a feature. So what is the boundary that the deed refers to?

    In SC property law there is a doctrine of Easement Implied by Prior Use. It most often referrers to an issue of ingress/egress but there are cases in SC that deal with such things as drainage ditches and structures that existed before the land was subdivided. Simply put, if the use was intended to continue after the land was subdivide, then it may be possible to get an Easement Implied by Prior Use.

    So if granddad had a lot and he builds a house for his son or grandson on his land, puts in a driveway (or one that already existed) that served both houses and then later subdivides the lot into two (or more) lots the presumption is that it is implied that the driveway will serve both lots. And, according to you, the driveway has served both lots. It's too late for the neighbor to now claim that he no longer wishes to share the shared driveway with the new buyers.

    our supreme court set out seven elements a plaintiff must prove in order to establish an easement implied by prior use.

    The party asserting the right to an easement implied by prior use must establish the following: (1) unity of title; (2) severance of title; (3) the prior use was in existence at the 533*533 time of unity of title; (4) the prior use was not merely temporary or casual; (5) the prior use was apparent or known to the parties; (6) the prior use was necessary in that there could be no other reasonable mode of enjoying the dominant tenement without the prior use; and (7) the common grantor indicated an intent to continue the prior use after severance of title.
    You have a house built partially on another lot. You have a driveway that was used by both lots for a long time. The question again is what was the history of when all these things took place.

    I agree with other posters that you need to consult a land use or real estate attorney that knows easement law in SC.

    All is not lost yet without knowing the entire history of how this situation come to be.

    Quote Quoting Cowsgonemadd3
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    Yes, it is likely the best solution. I was told that or we go to court to fight over the land and the we likely would still loose the driveway claim as there is no easement on my title. It was more of a verbal agreement of a shared driveway.
    I disagree on the driveway issue. But if you want to cut some deal with the neighbor for land, you still have substantial cost in getting a lot line adjustment and recording new deeds.

    Consult with an attorney before you decide. I think you are being snookered.

  2. #12
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,571

    Default Re: Land Survery Shows Half My House on Neighbors Land - Bought 7 Years Ago

    Now that the neighbor has played another card, offering a "land swap", things may be a bit clearer.

    This requires at least two new metes and bounds property descriptions, and preparation of deeds. This is going to require fees for surveying and legal fees. If the neighbor offers to "take care" of all of this, with you paying some or all of the fees, understand, first of all, that the lawyer he hires is his lawyer and not your lawyer, a critical distinction. This returns to my original advice, echoed by some here, that you need a consult with an attorney you hire.

    If you are going to be paying for an attorney anyway, be proactive and get your own, for your own protection.

    Going back to our original posts, you said that your deed description consisted only of references to adjoining parcels. If locatable on the ground by a surveyor, these control and supersede distance and direction calls or calls for a specific area. Not having the description in front of me, I have to stop there.
    Resistance is not futile; it is voltage divided by current.

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