Easement question

[Jeremiah O'Neill]

I am in the process of purchasing a single family home that appears to encroach on the neighbors property by about 2ft (2ft into the neighbors property and about 15ft long).  Both the lot being considered and the neighboring lot were purchased by the same couple in 1960.  The neighboring lot was vacant at the time, and the lot of interest had a home built in 1920.  In 1986, the mother and father gave the vacant lot to their daughter and her husband, and they built a home.  The mother and father have since passed away and then property of interest is now in a family trust, including the daughter that still lives next door.  They know of the issue, as the document they showed me is the survey from the mortgage company for their property.  It shows both a portion of the house and a portion of the sheds extending over the property line.  I am not too concerned with the shed, but of course the house needs to be resolved. What are the options here?  Will this be a long process?

[Matt Devincenzo]

I can't speak for a time line or cost in your area specifically, but I'll give you some ideas of what I've done with similar issues for clients.

So first I assume the 2nd home was built with permits, meaning the encroachment was either allowed by the City or was an accident that slipped through when the City approved the plans/subdivision. That's good, it means they will likely be less inclined to fight you on it or try forcing you to go with the "easiest" way to fix it which is rip off a portion of the house. And yes I have seen that as their preferred solution because someone built a corner of a bathroom encroaching into a City easement. 

1) A new easement isn't really appropriate....you could do a "condo" type 3-D airspace lot that crosses the actual lot line....I suppose...but it really isn't the best way. And may not even be do-able depending on how the homes are already subdivided.

2) I'd do a lot line adjustment. So you would prepare a new map which would move that lot line over from beneath the house to outside, and preferable over enough so you actually have a couple feet between the house and lot line. The problem with this one is if the lots are already close to the minimum allowable size then you need some sort of variance. So there are three ways this plays out:

The total lot area and frontage is sufficient that you just move the line over say 4 feet and everything is fixed. It should be very easy to get this approved, especially as it sounds like you won't have any opposition from either of the two lot owners.

The next two possibilities are that moving the lot line over makes one of the lots "sub-standard" meaning either it is too small or doesn't have the minimum street frontage any more. So one way to do it is just like the first option, move it over as far as you need, and get a variance for the adjustment on whichever lot is substandard. This is more difficult and will likely have to go to some sort of hearing or zoning board. Still completely do-able, especially considering the fact that it doesn't seem that this was done maliciously.

The other way that may prevent you from creating the substandard lot is you leave the majority of the lot line where it is. About 6" from where the lot line crosses under the building you put a jog in the lot line that runs parallel to the building, around the corner of the house and then back to rejoin the existing lot line again. Now you've left the house's street frontage alone and only reduced the one lot's square footage by maybe 30-40 square feet. The only issue with this is you haven't given enough space to actually be able to access the corner of the house for repairs, painting ect. So with this I would also create an "access" easement onto the neighboring property for maintenance ect. 

Hope that helps. All in all it sounds like it should be fairly easy to do since you have the cooperation of both property owners. Let me know if there's any part of that you need more clarification of, or any help figuring out what may be the best course of action.