Not every close call is a difficult one, but when problems arise it helps to have a fleet of attorneys at your back during crucial transactions like the purchase of property.

Some years ago, a seller and buyer came to us about a piece of rural property. The survey on the 5 acres came back, and showing on the north boundary of the seller’s property, there sat a water well that was half on the property, and half on his neighbor’s property. After some investigation, we found that his neighbor had been the one to erect the well there. And whether knowingly or unintentionally, he put it directly on top of the property line.

Obviously, the title insurance policy would have to reflect the encroachment, and we informed both parties of that fact. It was a problem, yes, but it needed to be a known issue on paperwork, or problems would crop up with the well in the future. The buyer didn’t like that idea at all, for several reasons.

We brainstormed how to solve this problem. One option would be for our seller to give an easement to our neighbor to the north. That would allow the neighbor to legally use the 5-10 feet of the seller’s property for his water well to be on, and that would formalize the situation, and make it above board. The easement would be recorded at the courthouse and everyone would be aware, and instead of an unauthorized encroachment, it would be authorized and legitimate. In fact, being attorneys, we could prepare the easement document in-house if needed. That wasn’t a good option for the buyer.

Another possible idea would be for the seller to GIVE that neighbor the piece of property, just cut it out and hand it over as a little piece of a puzzle, preferably with some compensation for the seller. Then, after the change in the property line was done, the water well would be entirely on the neighbor’s property. Both parties were vehemently against that idea, but it was an option.

The winning option was to have our underwriting attorney draw up an official contract between the seller and his neighbor that would require the neighbor to move his encroachment off the seller’s property and back to his own property within a specified time period (anywhere from 10 days to 90 days). In this scenario, the buyer and seller didn’t have to make a concession, and the responsibility for fixing the problem was placed where it belonged – on the encroaching neighbor. But the neighbor, to no one’s surprise, would not sign. By this time, the parties knew it just down to them. The seller didn’t want to lose his buyer, and the buyer didn’t want to miss out on the property just because of that little encroachment. They agreed to close with the water well being just where it always was, with all other options having been considered even if they did not ultimately succeed.

If you have a tricky closing on your hands, keep Attorney’s Title Group in mind. And remember we’re here if you have any questions.