Home/Property issues...

[ChrizJen]

What would you do?
We have friends who recently had a home built in a brand new community.
The developer marked their lot according to a survey that had been done.
Shortly after moving in, they had a large, pricey privacy fence built on the property lines that were marked by the developer.
Now, the developer is coming back to them and saying that the original survey was wrong, and that part of the fence is on another lot. They are saying that the fence will need to be moved.
My first thought was, "Fine. But let the developer be the one to pay for the fence to be moved."
But the more I thought about it, the more I think that they don't have the right to come back after the fact and take part of their yard away from them. They bought the lot and the home based on the original survey of the property.
The developer is being nice about it, and they seem willing to do whatever it takes to make it as easy as possible, but the bottom line is that my friends to don't want to lose part of their yard. And I don't think they should have to.

By the way, the lot next to them (that supposedly shares part of their yard) is being built, but it's only a display home. So no one has purchased the lot. In other words, it's not like the sale of this lot depends on correcting the survey and moving the fence.

I hope I'm making sense. I'm telling all of this second hand. But my friends are not happy about this whole situation, and rightfully so. What do you think?

 

[SundancePass]

First, have the lot surveyed by a professional surveyor according to the legal description on their home purchase papers. Have the surveyor mark it and give them a drawing. Then your friends will know. Or if they have a metal detector, they can go into their yard and find the metal posts buried in the ground outlined on the survey they got when the bought the home.

Legally, they will have to move the fence AND pay for it regardless of what the developer says if the legal description and the fence don't match. They only own as much land as it described in the papers given to them when they bought the home. It doesn't matter at all if they "don't want to lose part of their yard". It might not be theirs or have been theirs when they put up the fence. These are really sticky things and the legal description is the only thing that matters.

Have them pay for their own survey and don't use the company the developer used.

 

[Chicago526]

Yeah, I agree, it may be worth the $$$ to get another survey done. Who's to say the 1st survey wasn't right and it's the 2nd survey that's wrong? (I'm assuming the developer did a 2nd survey and that's what promted all of this).

 

[Jestocost]

Your friends also should check with the title insurance company. For new construction, they should have validated the boundaries and may step in to deal with this issue.

 

[ChrizJen]

Yes, there was second survey done by the developer when plans began for the construction on the adjacent lot. That's what prompted the whole situation.

It makes more sense when put in those terms. I suppose that no matter what any survey says, the boundaries of the land are what they are.
I guess they're out of luck if the developer chooses to push this all the way. Lesson learned, I suppose. They should have had their own survey done before they had the fence put in.

At this point I will certainly make the recommendation that they have a survey done on their own now just to verify which of the two surveys is correct.
Thanks for the input!

 

[Tina]

Did the couple not have a professional survey done as part of their purchase process? When we bought our home, we had to have one done (and pay for it) as part of the mortgage/purchase. If this was done and it was incorrect, I would go back to the survey company for an explanation (and possible damages/cost to move the fence).

 

[manning]

Land has value. I would be looking for a price adjustment.

 

[The Mystery Machine]

Interesting....I would hire my own surveyor and get another opinion. I am getting a fence in a new development. (almost done)

They used the property markers and my plot plan. No survey was done. However the house next to me just sold and the property markers are correct since they had a survey.

How much land is this? You could be talking fraud if it is a significant portion of land.

 

[clutter]

Did the couple not have a professional survey done as part of their purchase process? When we bought our home, we had to have one done (and pay for it) as part of the mortgage/purchase. If this was done and it was incorrect, I would go back to the survey company for an explanation (and possible damages/cost to move the fence).

Yeah, most mortgage companies require a new survey for closing. So your friend should have one that is 'correct' to what they purchased. Ownership of the land is determined by the survey and closing docs, not by the stakes that the developer put in the ground. So yes, the developer can 'take' the land away from them. They could also provide an easement agreement to leave the fence in place (where both parties effectively allow the one to use the other's land). Or they could pay to move the fence. However, if the survey from closing was correct, your friend may have no recourse.

You're right that the boundaries are what they are. Trust me, there was a LOT of negotiation between the developer and city/county setting those boundaries. But, they really should have a survey as part of their closing package.

 

[LuvOrlando]

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[Mom2Nick]

Yes, there was second survey done by the developer when plans began for the construction on the adjacent lot. That's what prompted the whole situation.

It makes more sense when put in those terms. I suppose that no matter what any survey says, the boundaries of the land are what they are.
I guess they're out of luck if the developer chooses to push this all the way. Lesson learned, I suppose. They should have had their own survey done before they had the fence put in.
At this point I will certainly make the recommendation that they have a survey done on their own now just to verify which of the two surveys is correct.
Thanks for the input!

Exactly - they should have had a survey done - not only before putting the fence in, but before buying the property. If a new survey determines that their fence is on land they do not own - they will have to move the fence.