Real estate: encroachment when same person owned both homes?
September 28, 2009 11:19 PM   Subscribe

How does property line encroachment work when the two properties were owned by the same person?

There are two houses in my neighborhood that recently went for sale. The homes were owned by the same person, who lived in both for 20 - 40 years. First house A was foreclosed went on auction, where it was bought. Then house B went on the market, where it remains.

Now, house B, the older of the two homes, crosses several feet over the surveyed property line of house A. The structure over the line includes part of a room and a deck. The room appears to be either original to the home (built in 1920s) or more likely an addition from at least 25 years ago.

Is property B really encroaching on A if the owner of B at the time (who happened to be the same person as the owner of A) didn't complain?

Do the owners of A or B have any guidance as to who owns what?

I'm not a party to this, I'm just curious how such an odd situation might play out.

Properties are in Berkeley, California.
posted by zippy to Law & Government (12 answers total) 1 user marked this as a favorite
It's no different than if two different owners owned the properties. The city staff usually looks at these things with the idea in mind that the properties will be sold to different owners in the future - or the present in this case. It's encroaching.

The new buyers get to deal with it. I don't know who will get hung with the cost of the removal. Essentially, the encroaching structure portion from B on A now belongs to A. That structure is also likely in violation of mandatory setback requirements. Those vary from city to city and block to block. I'd hazard a guess that they will split the cost of removal. The city may elect to permit the structure to stand, but any improvements made may incur the requirement for removal. If there is interior space crossing the property line, it's unlikely the city will let this go, though.
posted by Xoebe at 11:52 PM on September 28, 2009

If this were two different owners, then this would be a relatively simple adverse possession case. I don't know how that would work when the same person owned both properties.
posted by atrazine at 1:43 AM on September 29, 2009

Best answer: Here is something about adverse possession in California .

Obviously I am not a lawyer, and this is about adverse possession generally and nothing to do with this case.

Was there no inspection prior to the purchase?
posted by atrazine at 1:50 AM on September 29, 2009

Not likely to be any removal. Most likely the buyer of B will force the bank currently owning it to buy enough of A's parcel to satisfy the city, as a condition of buying, or there will be no sale.
posted by megatherium at 4:00 AM on September 29, 2009

Best answer: ooooh, I LOVE adverse possession cases. Everything I say here is based on the common law, not California law-- and there's a practical aspect to it that I'll include later. But to start-- when the house was built, there was no adverse possession by the owner, since you can't adversely possess against yourself. (side note-- "adverse possession" is really a statute of limitation, that if I possess your property for long enough, you can't sue me to kick me off your property or anything else.) There was an involuntary partition of the property with the foreclosure sale, and the adverse possession clock started ticking with the foreclosure sale of house A with the owner's adverse possession of a portion of lot A (the requirements are that the possession be open, notorious, adverse, and hostile, all terms of art, and they're probably all satisfied here). The owner of lot A would, under the common law, have to do something to complain about the encroachment within whatever statutory period applied, or the owner of B would wind up owning that portion of lot A.

This could end up in a flurry of litigation that required the reading and interpretation of the documents in the chains of title, especially with regard to whether any warranties of title went along with either the mortgage of lot A or with the foreclosure sale. Or, the better way to deal with it, at least in the absence of California-specific law, is, if the owner of lot B (the original owner of both lots) is otherwise going to get a pot of money out of any closing, then a portion of that money would go to buy the portion of lot A where the house B encroachment sits-- and probably a little extra land, so that the new owner of house B can do things like work on his house without trespassing into lot A. There would be a deed of the portion of lot A to the buyer of lot B (or the seller, if done contemporaneously or before the sale), and the property descriptions would read, "lot A, minus the west 20 feet thereof," and "lot B and the west 20 feet of lot A." Do it as part of the closing and there's no pain. Otherwise, it can get nasty, brutish, and long.
posted by missouri_lawyer at 9:57 AM on September 29, 2009 [2 favorites]

The owner of the encroached-upon property could grant an easement to the other property, which would be registered at Land Titles and from then on stay with both properties through future sales. The agreement could be as detailed or spare as each party wishes.
posted by Pomo at 1:11 PM on September 29, 2009

Best answer: I was looking at it from the viewpoint of the permitting agency. When structures cross property lines, you can be almost certain they are not per the planning code. The city should insist that the properties be brought to code. This means removal of the offending structure.

Some of the other ideas here are clearly applicable, but as you have seen, there are nuances and complications. You can have two cities with identical statutes, and one will go one way and the other, the other way.

An easement is a possibility. There are other options as well, such as making the two lots into one. This isn't cheap, though. California cities LOVE putting their citizens on the hook for all kinds of money, often for ridiculous reasons.
posted by Xoebe at 2:16 PM on September 29, 2009

Response by poster: missouri_lawyer, wouldn't the adverse possession clock start ticking the moment a bank had an interest in either property? Let's say that the owner took out a mortgage against one of the properties, say the one being encroached upon. If the bank didn't notice the problem then, would that start of the adverse possession clock in advance of the present day sale?
posted by zippy at 9:45 PM on September 29, 2009

Response by poster: I forgot to add a crucial detail. The original owner owned two adjoining lots, A and B, each with a house (house A and house B). The owner never merged the lots or moved the property lines to account for the encroachment of House A (on lot A) onto lot B.
posted by zippy at 9:48 PM on September 29, 2009

Best answer: No, the mortgage interest isn't "possession," so it can't be adverse. Black's Law Dictionary defines "adverse possession" as "the use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, open, and notorious." (emphasis mine) Under all the common law I know, mortgaging part of a tract of land doesn't constitute a change in possession of that tract.

Again, I'm not conversant in California law, something I stated up front. There is no predicting what California statutory or common law might say on the subject. if a California lawyer who's conversant on the subject wants to chime in, I'd love to see it.
posted by missouri_lawyer at 9:39 PM on September 30, 2009

Response by poster: Fascinating answers, thank you everyone.
posted by zippy at 10:43 PM on October 6, 2009

Response by poster: Following up to Xoebe's and Missouri Lawyer's comments:

1) The owner of Property A complained to the city.
2) The city posted a notice on the front door of Property B saying "we've received complaints" and that the property-line crossing changes were unpermitted and must be abated.

About a month later, Property B was delisted, though as a result of this or of wanting to clear the MLS "previously offered" price in the real estate listings, I don't know. Maybe both.
posted by zippy at 10:49 AM on November 23, 2009

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