Every now and again I am called upon to assist clients and realtors determine how to proceed when there is a cloud on title which needs to be cleared before the client can obtain financing. Basically, if there is a cloud on title, mortgage companies won’t lend, when mortgage companies don’t lend, only cash buyers will come to make the purchase … if at all.

In fact, sometimes it is these cash buyers who want to figure out if is worthwhile to purchase the property notwithstanding the cloud on title. The answer to that is not unequivocal. But, in the main the answer is usually no.

Use the situation, to force the seller to sort out the issue first and if it is to your satisfaction, then move forward.

Now what is reasonable as to satisfaction? That is the loaded question that real estate brokers should be seeking to help their clients understand. In a situation where there may be a fence which is encroaching on to the land of the neighbors, is it acceptable to have the fence pulled back? To the prospective buyer that discovers the presumably latent defect, this might in fact be a deal killer.

However, what about the situation in which the prospective home purchaser has identified the home of their dreams and they are ready to move forward when all of a sudden it is discovered that they fence is closer to them than it apparently should be. What then?

Realtors in this situation should help their clients to realize that to clear title an easement will make things right. But, that’s my land the home purchaser is likely to indicate. They may even move on to the argument that I’ll be paying taxes on that land.

To the first question, just ask: really? When you made the offer were you contemplating that you would get that extra 1/2 foot on the other side of the fence? The answer is: No.

With respect to taxes, just strike a reasonable number with the seller. The purchaser is indeed getting exactly what they pay for … no more, no less. 

  • pamela

    thank you for your advocacy for promoting surveyors to resolve boundary conflicts. We attempted 3 requests to resolve our boundary dispute the opposing and we received a letter from their attorney the conflict would only be resolved by us signing a territorial agreement they would draw up and it would be economical for us to do. Also anyone that would attempt to do a survey that did not comply with theirs would be considered a trespasser and treated as such. That was our request to have a 3rd party surveyor to determine the property line. finally in depositions their surveyor stated he was sent both our deed and survey and their deed. We have senior rights. Their surveyor stated he knew ours was senior but decided to treat the 1904 sequential surveys as a subdivision. Their surveyor also had reference of the adjoining lot and that surveyor recognizing the shortage that all the previous surveyors have honored. their deed also named my original 1904 purchaser and the original purchaser of the adjoining lot naming these persons. stated their lot was the lot and the adjoining property owners get all their footage CONVEYED to them, indicating sequential/senior rights. This has been 3 years in litigation, THOUSANDS of dollars and this opposing building a fence on my property while I was at work, he just determined he was deciding it was his property without a judge, jury, attorney or the respect of the two survey lines that disagreed. Surveyors need to legislate stronger for the Browns Procedure of Survey and have the education be the guidelines for what the court so land, especially adverse possession and MTA is better understood for the judicial system to expedite these nuances /procedures of survey to remain intact.