Selling a house, but I can't "clean" the title.... I BOUGHT IT CLEAN!

Raleigh, North Carolina
Buying & Selling Real Estate
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Selling a house, but I can't "clean" the title.... I BOUGHT IT CLEAN!

Ben Pupa
Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes

Hi all, I wasn't sure whether to post this in Legal or Buy/Sell, but I'll be grateful for any advice you have. 

in 2019 I purchased a property (survey map refers to it as "7B"). During the title search, it was determined an old shed on the property encroached a couple feet over the property line onto lot "7A". I was told it was no big deal as long as the neighbor signed a document giving me permission to keep the shed. She declined, but proceeded to sell her lot (7A) with no further discussion about it. The new owners never mentioned it and I assumed that was the end of it. **My deed references the recorded 1986 survey map, this will be important later!!**

Now in 2023 I am under contract to sell my property, and time is of the essence. The buyer's for my lot (7B) had their title search done, which revealed that my shed doesn't touch 7A at all! A survey for 7A in 2013 shows that my property line actually wraps around the shed. This means I never needed permission from the neighbor to begin with since there is no encroachment. However, since my title references the 1986 map and not the 2013 map, I'm screwed. 

There is a discrepancy between the 7A and 7B recorded maps! Basically, I was never legally granted the 10 square ft (+/-) of land on the back of my shed, but neither was the buyer of 7A. This means it still belongs to the people I originally purchased 7B from, and I cannot sell it. The buyer plans to subdivide my land and resell it, so they require need a clean title. I was just told I should not have had clear title to close back in 2019, but now I'm stuck with the problem.

I have title insurance for my purchase of 7B, and I know they don't "insure" anything that a new survey discovers. However, the "new" survey for 7A was performed in 2013, and my title company had access to that map. 

Obviously I have a lot of questions, but mainly:

What can I do to clean my title?

Did my title company screw up by not referencing the more recent survey in my title?.. or were they not allowed to use the new survey because it was for the neighbor (7A) and not me (7B)?

If they screwed up, how do I "invoke" the title insurance to cover my monetary damages (either loss of sale, or me paying attorney fees to fix this)?

Is it even worth approaching the closing attorney I used 4 years ago to ask about this? or should I just start from scratch with someone new?

I look forward to your replies

-Ben

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Tom GimerBusiness Member
DMV · Member since 2017 · 3k+ posts · 3k+ votes
3y
Quote from @Ben Pupa:

Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

The legal description of your land may now include 2 parcels found in 2 separate instruments.

Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    3y

    @Tom Gimer   Maybe Tom can give you some guidance.

    I have personally had a few title claims that had to do with encroachments and being land locked and they got worked out but not without effort and time.

    Title companies cured them though. 

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  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    0Reply
  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y
    Quote from @Jay Hinrichs:

    @Tom Gimer   Maybe Tom can give you some guidance.

    I have personally had a few title claims that had to do with encroachments and being land locked and they got worked out but not without effort and time.

    Title companies cured them though. 


     Thanks for the reply. Are you saying I should hire a new title company to fix this, or that I should approach the title company I used 4 years ago?

    0Reply
  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    3y
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.

    Gimer Law516 Reviews
    WebsiteView Page
    1Reply
  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    3y
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Alternatively a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


    Thats what I was thinking Tom,  the deed would trump the map.. maps are very often not correct.  and you have to draw the map based on the legal description in the deed..  
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  • Jack Deer
    Member since 2020 · 84 posts · 27 votes
    3y

    I'm thinking about buying a lot that has the same issue as this. I want the lot; I just don't want to find out later that the encroachment is much more than the 2'+ around the shed.

    I'm researching everything and have already posted here in the hopes that someone might share an idea.

    Just a thought! How hard is it to move the shed and be done with the problem? Sometimes, being right is expensive.

    0Reply
  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


     Thanks for the reply, but I am the seller! How do I go about this “confirmatory deed”?

    0Reply
  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y
    Quote from @Jack Deer:

    I'm thinking about buying a lot that has the same issue as this. I want the lot; I just don't want to find out later that the encroachment is much more than the 2'+ around the shed.

    I'm researching everything and have already posted here in the hopes that someone might share an idea.

    Just a thought! How hard is it to move the shed and be done with the problem? Sometimes, being right is expensive.

    The shed isn’t the problem. It’s getting torn down anyway. The problem is the recorded conflicting surveys. My buyer wants to develop the lot and resell it, and doesn’t want to run into this title issue when selling. 
    0Reply
  • Jack Deer
    Member since 2020 · 84 posts · 27 votes
    3y
    Quote from @Ben Pupa:
    The shed isn’t the problem. It’s getting torn down anyway. The problem is the recorded conflicting surveys. My buyer wants to develop the lot and resell it, and doesn’t want to run into this title issue when selling. 
    I understand the part about the shed. How about the encroachment? It
    doesn't look like much. Couldn't you just give it to the neighbor and
    have a clean survey done? Try to approach the neighbors and ask if they
    would be good with that. Get something in writing.
    0Reply
  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    3y
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


     Thanks for the reply, but I am the seller! How do I go about this “confirmatory deed”?


    The seller who you acquired the property from would execute the confirmatory deed to correct the conveyance. Most often it is the title company/attorney who handled the prior transaction that would help fix the issue. They should have your seller’s contact information. 

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    0Reply
  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


     Thanks for the reply, but I am the seller! How do I go about this “confirmatory deed”?


    The seller who you acquired the property from would execute the confirmatory deed to correct the conveyance. Most often it is the title company/attorney who handled the prior transaction that would help fix the issue. They should have your seller’s contact information. 


     I see. The seller had the same map reference as I do though. So I’d have to go back to who she got the property from. 

    0Reply
  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y
    Quote from @Jack Deer:
    Quote from @Ben Pupa:
    The shed isn’t the problem. It’s getting torn down anyway. The problem is the recorded conflicting surveys. My buyer wants to develop the lot and resell it, and doesn’t want to run into this title issue when selling. 
    I understand the part about the shed. How about the encroachment? It
    doesn't look like much. Couldn't you just give it to the neighbor and
    have a clean survey done? Try to approach the neighbors and ask if they
    would be good with that. Get something in writing.

     The neighbors don’t have the issue on their title. They all have the correct map that says I own it. 

    0Reply
  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    3y
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


     Thanks for the reply, but I am the seller! How do I go about this “confirmatory deed”?


    The seller who you acquired the property from would execute the confirmatory deed to correct the conveyance. Most often it is the title company/attorney who handled the prior transaction that would help fix the issue. They should have your seller’s contact information. 


     I see. The seller had the same map reference as I do though. So I’d have to go back to who she got the property from. 

    IMO, the 2019 title search was incomplete... because the title company/attorney/abstractor missed whatever the surveyor of the neighbor's land caught in 2013. That small parcel should have conveyed in 2019 but did not.

    The legal description in the 2019 deed was likely copied from the legal in the deed whereby your seller acquired the property... incorrectly.

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    WebsiteView Page
    1Reply
  • Ben Pupa
    OP
    Investor · meadows of dan va · Member since 2016 · 16 posts · 3 votes
    3y
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


     Thanks for the reply, but I am the seller! How do I go about this “confirmatory deed”?


    The seller who you acquired the property from would execute the confirmatory deed to correct the conveyance. Most often it is the title company/attorney who handled the prior transaction that would help fix the issue. They should have your seller’s contact information. 


     I see. The seller had the same map reference as I do though. So I’d have to go back to who she got the property from. 

    IMO, the 2019 title search was incomplete... because the title company/attorney/abstractor missed whatever the surveyor of the neighbor's land caught in 2013. That small parcel should have conveyed in 2019 but did not.

    The legal description in the 2019 deed was likely copied from the legal in the deed whereby your seller acquired the property... incorrectly.


     Yes! My thoughts exactly. So I’m just trying to figure out how to fix it. It seems like I’ll have to get signatures from the old sellers estate/power of attorney from before the mistake was made. 

    0Reply
  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    3y
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:
    Quote from @Tom Gimer:
    Quote from @Ben Pupa:

    Here, the newer map shows this box extending my property around the shed. However, my deed does not have this extension, so I cannot sell it. 

    Presumably there is something recorded among the land records establishing a new lot line. The most recent surveyor relied upon something to draw those segments.

    The legal description of your land may now include 2 parcels found in 2 separate instruments.

    Fairly simple fix if this was missed -- a confirmatory deed could be executed by your seller that correctly describes the land and conveys all of it.


     Thanks for the reply, but I am the seller! How do I go about this “confirmatory deed”?


    The seller who you acquired the property from would execute the confirmatory deed to correct the conveyance. Most often it is the title company/attorney who handled the prior transaction that would help fix the issue. They should have your seller’s contact information. 


     I see. The seller had the same map reference as I do though. So I’d have to go back to who she got the property from. 

    IMO, the 2019 title search was incomplete... because the title company/attorney/abstractor missed whatever the surveyor of the neighbor's land caught in 2013. That small parcel should have conveyed in 2019 but did not.

    The legal description in the 2019 deed was likely copied from the legal in the deed whereby your seller acquired the property... incorrectly.


     Yes! My thoughts exactly. So I’m just trying to figure out how to fix it. It seems like I’ll have to get signatures from the old sellers estate/power of attorney from before the mistake was made. 


    My best guess is sometime in between when your seller acquired the property and when they sold it to you, they acquired that small strip of land from the neighbor. On the drawing it's not shown as an easement, so there must be a deed recorded. If that's the case you'll just need a confirmatory deed from your seller that includes parcel 1 (the large lot) and parcel 2 (the strip). If the error was made further back in the chain from your seller that just means more parties need to be involved in correcting the issue.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    3y

    I think the place you need to start is with the legal description of the property to be conveyed in the contract you signed with the seller; I suspect it says Parcel 7B.  If that's the case, in my opinion, you probably received and were insured for what you contracted for, though possibly not what was intended to be sold which might have been Parcel 7B together with that part of Parcel 7A previously conveyed by deed recorded in whatever Book and Page or whatever the recording nomenclature is used in that county.  If I'm correct then your title insurance policy probably won't help you, but it never hurts to submit a claim to the insurer as the worst they can do is deny liability.

    Now if I'm wrong and the contract description is for all of John Smith's property in Knowhere County, NC then there might be a defect in title covered under the policy but then the question of loss might come down to what if any is the diminution in value to the property you intended to receive vs the value of what you did receive.  But I think it's worth filing a claim in any case.

    If my first assumption is correct and you believe it was intended that you receive that part of Parcel 7A then you probably need to go back to your Seller and get an additional deed for the parcel.

    1Reply
  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    3y
    Quote from @Peter Walther:

    I think the place you need to start is with the legal description of the property to be conveyed in the contract you signed with the seller; I suspect it says Parcel 7B.  If that's the case, in my opinion, you probably received and were insured for what you contracted for, though possibly not what was intended to be sold which might have been Parcel 7B together with that part of Parcel 7A previously conveyed by deed recorded in whatever Book and Page or whatever the recording nomenclature is used in that county.  If I'm correct then your title insurance policy probably won't help you, but it never hurts to submit a claim to the insurer as the worst they can do is deny liability.

    Now if I'm wrong and the contract description is for all of John Smith's property in Knowhere County, NC then there might be a defect in title covered under the policy but then the question of loss might come down to what if any is the diminution in value to the property you intended to receive vs the value of what you did receive.  But I think it's worth filing a claim in any case.

    If my first assumption is correct and you believe it was intended that you receive that part of Parcel 7A then you probably need to go back to your Seller and get an additional deed for the parcel.


    If you find you need the deed, please go back to the original title company and ask for an endorsement to your policy to include the additional legal before trying to get the deed.  They should do a search and exam first to confirm your seller has good title to it before you take title.

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