Trying to buy a foreclosure but title and survey do not match, NY

[David Sweeney]

A recent survey performed in the process of buying this foreclosed property does not match with that is on the title. 

From the street, the forclosed house is on the left part of the property with a large yard on the right. Between the house and the neighbors driveway is a 5.5 foot wide piece of land that was included in our survey but is not on the title. The electric meter for our foreclosed property is on this side of the house, and the neighbors have a fence in the back yard that is colinear with the edge of the driveway. We assume the surveyor is correct in including this piece of land with the rest of the property, and the neighbor we spoke to agrees that the edge of the driveway and fence is the correct property line. The title however lists the edge of the house as the edge of the property, and does not included the 5.5 foot wide piece of land. This discrepancy has, from what we are told, caused a catch 22 situation. 

From our lawyer, the title can not be changed unless someone will live there for 10 years (we will not, obviously), and they cannot provide title insurance or sell unless the title is changed to match the survey. The previous owners lived there for more than 10 years, and apparently this discrepancy has been an oversight with the last few residents and has not come up until now. So, we are left with this: the bank that owns the property can not get title insurance for it. The city cannot just outright change it. Our final attempt will be to get the bank to appeal to a court to get the 5.5’ piece of land added to our property.

Is this our only recourse? Could this property actually sit vacant forever because people we can only cantact through our lawyer can’t communicate effectively with each other? At a loss right now and we really like the property and would hate to see its potential be wasted. Located in western NY.

[Clint Shelley]

There are often gaps in title and property lines. This case sounds like there may have been an aquiesence issue or maybe former landowners could have made an unrecorded boundary line agreement or conveyance. Did the surveyor find pins for the new strip or did he set? Was there existing pins at the original title location? Does this side abutt an old alley or road that has been vacated thereby giving your piece half? This is fixable. You can still purchase the property but the title company will not cover the 5 foot section. You can get an affidavit of ownership from the previous owners and if it has been like this for 20 years or greater, the TC may consider it quiet and might cover it. The surveyor should be able to offer an opinion as to what happened. Also, find an old resident nearby and ask them. Don't give up, just ask more questions. Somebody knows something.

Clint