Q: I recently paid for a boundary line on my property to be surveyed. In the process we discovered that our well and holding tank may be 60 feet west of my property line. The adjacent property is undeveloped and the owner is my friend and neighbor who lives on another adjoining parcel just west of the vacant one. We are going to have an official survey done on that line in a week or two. If it is indeed the case that my well is on his property he may be willing to do a lot line adjustment but I haven’t broached the subject as of yet. His lot is 20 acres, the minimum lot size, and mine is 31 acres. I closed escrow on this parcel in June. One of the conditions of the sale was that the seller would provide a well on the property at his expense. He selected the site and hired the drilling company. Does the seller have any responsibility for sighting the well incorrectly? Also, neither he nor his agent ever showed up at close of escrow to point out the property corners. And, if I do get an agreement with the neighbor for the line adjustment, could I expect to recover some or all of the cost of that process from the seller?
A: You have a number of questions.
To begin, a lot line adjustment may not make sense in this case, and may not be possible from a practical perspective.
As a general rule, property owners can agree to boundary line adjustments and have them permanently recorded, thus forever changing the boundaries between the parcels.
However, with a 20 acre minimum barely being met you will have to figure out an adjustment that adds as many square feet as it removes from the neighbor’s lot.
I don’t know what the geography of the property looks like. Access to creeks, drainage, ingress and egress may have a lot to do with the relative values of the properties should the boundary be moved. For example, your neighbor is not going to want to give up an acre of flat land in exchange for an acre of hill front.
Lot line adjustments can be expensive and time consuming because of the surveying requirements. It would be a lot easier to simply create an easement.
An easement would give you, and any subsequent buyers, the right to have your well on the neighbor’s property and to access the property in order to maintain the well.
An easement can be created without the need to involve surveyors and the county.
Your neighbor may object to an easement if it reduces the value of his property. This is a matter for negotiation.
Regarding the potential liability of the seller or the Realtor, under most situations neither would be liable for the mistake.
A seller’s only obligation is to disclose those defects that he or she knows about. Normally, if the seller didn’t know the well wasn’t on his land he would have no liability.
This case is different. The purchase contract called for him to install the well on the property being sold. His failure to do so, even if it was an honest mistake, amounts to a breach of contract and you would have a legal action against the seller.
The Realtor has no obligation to check the public record or double check the lot lines. Unless you can prove the Realtor made some affirmative representations to you that the well was on the right parcel and you relied upon those representations when deciding how much to pay for the property the Realtor has no liability.
The easement seems to be the easiest way out. Perhaps you can discuss with the seller, or his attorney, the possibility of paying some compensation to the neighbor for the right to an easement.
Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like answered in this column you can contact him at SolanoScene@TJones-Law.com.