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Irwin Law
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 7147
Experience:  Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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Buyers rights - encroachment found prior to settlement

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Under Forida law what rights do I have as a buyer, with a signed contract when, prior to settlement I find an encroachment?  I'm purchasing a waterfront residential property and have found that a raised walkway to a boat dock encroaches on an adjoining property. Would this be considered a title defect and can the buyer be held responsible to resolve this situation prior to closure?

Good morning ! Thanks for submitting this question. An encroachment is definitely a potential title defect. As a buyer, you don't want to close on a sale where you are encroaching upon a neighbor's land. A suit by the neighbor might force the owner to remove the encroachment. That's the whole purpose of getting a survey in the first place. It is the seller's responsibility to cure the defect not the buyer's.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 3 years ago.

That is exactly what I thought and I notified the Seller's agent of the potential encroachment based on a two year old survey from the previous purchase. Their initial response was "Oh, it's over riparian land so there is no encroachment." Then they changed their tune and said the previous title company accepted the previous survey. These reactions seem to me to be just real estate agent bullying tactics. So I am ordering a new survey with instructions to the surveyor to explicitly annotate all encroachments on the final drawing. I will also retain an attorney and have attorney to attorney communications from now on - no more talking to irrational realestate agents. Will I be able to claim attorney fees as damages in a small claims court proceeding?

No. Definitely not. But even so, the attorney is a must. What you are doing is called "due diligence" and the buyer is responsible for paying his own fees for it. When you obtain the survey, you can request that the title company insure title and waive any survey exceptions. Otherwise, your title insurance will exclude encroachments.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

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