Selling house...property lines...need advice.

[brn agn]

My wife and I are selling our house. There is an easement beside the house, which is owned by the city (they own it for possible future expansion of a street). Our garage is behind our house and we have to drive on the easement to get to it. When I purchased the house, I called the city engineer and asked if I could build a driveway on the easement to get to the garage. He said that the only thing I could do is put gravel on it...no concrete or asphalt. So, I had a gravel drive put in and have not had any troubles. We have a contract on our house right now (for sale by owner) and the new owner has already told us that he is putting an asphalt driveway in. When we told him that he couldn't, he said that he is going to "play dumb" if the city catches him.

My question is, how can my wife and I make sure that we do not get involved in this mess (assuming the owner follows through with his plans). I suspect that he could try to blame us by saying that we did not tell him that the easement was not part of the property? I do not have a survey of the property, but I am thinking about paying for one, just so I can provide the new owner with it showing the property lines. What do you guys think?

There is a section in the contract that says the following, but I do not think it will help us in this case:

RESTRICTIONS, EASEMENTS, LIMITATIONS: Buyer shall take title subject to: (a) Zoning, restrictions, prohibitions and requirements imposed by governmental authority, (b) restrictions and matters appearing on the plat of common to the subdivision, (c) Public utility easements of record, provided said easements are located on the side or rear lines of the property.

 

[Lee_Burough]

Make comlete disclosure....

If you are up front and truthful about the easment, its his problem after he buys the house. (A realtor will look out for you on this). Most standard disclosure forms have a section to notify prospective buyers of any easments.

A lender usually requires the buyer to pay for his own survey. You don't care what he does after he buys it....

Good luck

 

[DKREDT]

My wife and I are selling our house. There is an easement beside the house, which is owned by the city (they own it for possible future expansion of a street). Our garage is behind our house and we have to drive on the easement to get to it. When I purchased the house, I called the city engineer and asked if I could build a driveway on the easement to get to the garage. He said that the only thing I could do is put gravel on it...no concrete or asphalt. So, I had a gravel drive put in and have not had any troubles. We have a contract on our house right now (for sale by owner) and the new owner has already told us that he is putting an asphalt driveway in. When we told him that he couldn't, he said that he is going to "play dumb" if the city catches him.

My question is, how can my wife and I make sure that we do not get involved in this mess (assuming the owner follows through with his plans). I suspect that he could try to blame us by saying that we did not tell him that the easement was not part of the property? I do not have a survey of the property, but I am thinking about paying for one, just so I can provide the new owner with it showing the property lines. What do you guys think?

There is a section in the contract that says the following, but I do not think it will help us in this case:

RESTRICTIONS, EASEMENTS, LIMITATIONS: Buyer shall take title subject to: (a) Zoning, restrictions, prohibitions and requirements imposed by governmental authority, (b) restrictions and matters appearing on the plat of common to the subdivision, (c) Public utility easements of record, provided said easements are located on the side or rear lines of the property.

I am going to assume that you are using a lawyer to help represent you at closing. As such, make sure that you consult with them on this issue. Common sense says that you have already notified the buyer of the issue at hand. Many improvements require permits or city approval etc. Sounds like the buyer is one that doesn't like to mess with that kind of "stuff". If he paves it the city will most likely require him to tear it up and his expense if and when they need access.

 

[brn agn]

Thanks for the advice. I have been completely truthful with the buyer. What makes me nervous is that the last time I talked to him he said, "I am going to have the driveway finished in asphalt, so let's pretend that we did not have that conversation about the easement". He is fully aware of the situation. He did ask me what I thought would happen if he did it and I told him that I didn't know for sure, but I would imagine that the city would either have him tear the driveway up or they will tear it up for him and send him a bill.

As a precaution, I am going to get a plat map of the property and/or a spot survey (if his mortgage company does not require it) and present it to him at closing.

 

[S2V6RACER]

Be honest on your sellers disclosure statement. It may/may not ask about encroaching on any easements or not. This is probably more directed at structures, not driveways.

His mortgage survey should show the easments, he can not say he did not know about the easments prior to closing. You did not put in the asphalt.

You do not need a attorney to represent you in a closing, the title company will see to it that everything is clean and signed. Of course, it is your right to have a attorney if that makes you feel more secure, and if you don't know the proccess then it is a good idea. The documents are pretty much standard. Attorneys will know how to protect you or ways to put the screws to your buyers if they back out, that is about it. We have done enough buying/closing of homes and done them by owner, it is a pretty cut and dry proccess.

Your local title companys "may" have for sale by owner packets that describe all the proccesses you HAVE TO DO to sell your home legally.

 

[scottyb]

In FL, you need to get a survey that shows the property lines and details items such as yours. As long as the survey shows the gravel drive is not on your property then you're fine.

 

[BLACK6PACK]

As scott b said, it is required by the Title Insurance company to have a survey to close on the house in florida. Its usually about $200-300 which is rediculous cuz there are iron pipes in the ground at all 4 corners of my property. There is a 2'x6' easment for a guidewire that holds up a light pole in one corner, good thing is that the wire is actually in the neighbors yard. He must have an easement too.

 

[gofstbuick]

Isn't there a written disclosure that the seller presents to the buyer during escrow? If you provide the disclosure to the buyer, then I would think it is on him/her.

 

[brn agn]

Now that you mention it, I remember receiving a disclosure statement from sellers when I was looking for homes about 4 years ago. The statement made references to water in the basement, leaks in the roof, etc... In retrospect, I should have completed something like this prior to signing the contract and gave it to the buyer.

My wife did pick up a plat map showing the property and the easement. If I can find a disclosure statement (or make one), I will fill that out and give it to the buyer along with the plat of the property.

My gut feel is that the buyer would not accuse us of not disclosing the easement, but I want to err on the side of caution.

Thanks everyone for your advice.

 

[Duff73]

Easement

Saw your thread, I'm a commercial property manager here in Washington. The one thing you have to be aware of is should he go ahead and asphalt anyway and default on the contract you will end up with the property and then it will become your problem. The beauty of buying anything on contract is should the buyer default you regain the real property. From the clause you posted anything stating to the fact that the easement is on public record should protect you from recourse should he decide to move forward with his project. Every state has varying laws as to local municipal codes but easements are pretty cut and dry. Alway, always get everything in writing. If you haven't closed yet when you go to the closing have a real estate attorney draft up some documentation as to the current state the property is being turned over in. Get some pictures of the area in question at the time of closing. It would make it much easier in the future should you have to appear in front of a City engineering department. That way the problem which could be yours should he default, can be traced to one person. The City depending on where you live would be more apt to deal with you knowing that you are trying to work to rectify the problem rather than compound it. Hope some of that helps.

 

[The Blob]

You are worrying about nothing. Once you sell the property it is his... you are done with it. If he does bonehead things it is not your responsibility and none of your concern.

RESTRICTIONS, EASEMENTS, LIMITATIONS: Buyer shall take title subject to: (a) Zoning, restrictions, prohibitions and requirements imposed by governmental authority, (b) restrictions and matters appearing on the plat of common to the subdivision, (c) Public utility easements of record, provided said easements are located on the side or rear lines of the property.

Right there in your contract the matter is addressed. The buyer takes title to the property subject to easements of record. He knows about the easement... it will be on the survey. He knows he will be subject to the easement... it is right there in the contract.

Think about it this way... if you sold the house and he made renovations in violation of the zoning could you be liable because you didn't expain the zoning before you sold it? Obviously, no.

This is the same thing.

You are making a problem out of nothing.