For this post I would like to define two terms. Encroachment-when a structure of any kind (a building, fence, or wall) or portion of it extends beyond the land of the owner and illegally intrudes on land of an adjoining owner. Easement-the right given to use the land of another for a specific purpose.
A closing date was finally set for last Friday. All three lawyers, the buyers, the sellers, the listing agent, the selling agent, a rep from the title co, and a rep from the bank were all available. All final bills had been submitted and the HUD statement was sent out. Thursday afternoon I received an email from the sellers atty that the seller did not want to pay the commission to the real estate agents. Since the seller became mysteriously unavailable until Friday evening, the closing was called off.
Over the weekend the listing agent had a chat with the seller and it was my understanding that the closing would take place on Monday or possibly Tuesday at the latest depending on everyones schedules.
On Monday the seller decided that since he still had to pay the commission, he would try to have the buyer pay for the cost of removing the encroachments to the tune of about $12,000. In the contract it states the seller must give clear and marketable title to the buyer. This means the property has to be clear of encroachments. The seller is now claiming that the buyer said they would pay for removal of the encroachments. I have a few issues with this.
1. The buyer NEVER said they would pay to have the encroachments removed. Why would the buyer offer to pay for something that was not their responsibility?
2. This language was never written in to the contract for sale, added as an amendment to the contract, and is not in writing from the seller or the sellers atty.
3. The buyer was never given estimates, consulted as to cost, or allowed to interview the company to do the work. Why would the buyer give the seller carte blanche with their checkbook?
4. One of the encroachments was to be given an easement. This means that the owner of the property to the north was going to say on paper that it was ok for the rock wall to be on their property and that that part of their property now technically belongs to the owner of the property to the south.
5. The seller spent unnecessary money he is now trying to charge to the buyer for removing the wall that was to be granted an easement.
6. The removal of the wall reduces the value of the property.
7. When the closing was scheduled for the week before and the bank requested all final bills to be submitted, there was no mention of the buyer owing the seller $12,000+.
8. And finally, THE SELLER IS ALREADY SUING HIS TITLE COMPANY FOR THE MONEY SPENT ON CURING THE ENCROACHMENTS!!! He is claiming his bank allowed him to purchase the land with encroachments without telling him.
You would think the seller and his lawyer would have remembered about a bill as large as $12,000. It was only after the seller saw the amount of money they were receiveing from the sale of the house and the commission that was to be paid that the attemt to not pay the commission was tried. After that failed, the seller and his atty brought this bill up.
The problem for the buyer is that even though seller put his house on the market knowing about the encroachments, and the buyer has been waiting for the encroachments to be cleared for 7 1/2 months (they are still not officially cleared), and the buyers have kept to everything on their side of the contract, the buyers cannot make the seller sit down and sign the paperwork. The seller can tie up the buyers earnest money deposit that is held in escrow. The only recourse the buyer has is to sue the seller. This means going to court and could take years to settle.