We hear from Merri Ann Simonson…
Corner stakes are one of the most important components of purchasing real estate, I have learned this over 25 years of selling real estate on San Juan. For the properties that transacted years ago, corner stakes were not a big issue; of course, nor was a water source, or a septic permit or archaeological areas. Times have changed in our rural area and the buyer must know what they are purchasing before they close.
To make an informed purchase decision on any type of real estate purchase, even improved, they must know the property’s boundaries. Within every contract I write I include that the seller is required to show buyer the stake locations and further agrees to hire a surveyor to mark any missing stakes. Many sellers strike this provision due to the added costs, but then I recommend to my buyer to hire the surveyor to find the corners.
Stakes go missing over the years because a tree might fall on them, a car runs them over, a neighbor might remove or relocate them and if they were wood, they rot. Of course, cows and horses love to scratch their chins on them. Surveyors mark a date on each stake and are required to record the survey if any new stakes must be set.
In some cases, we have found that the corners were set improperly originally. This is typically due to improvements in equipment with GPS and/or errors made back in the 1960’s and 1970’s when many of our subdivisions were platted.
I recall one map that indicated 100 feet of waterfront. When we taped it off, it was only 80 feet corner to corner. It was a very good thing we discovered this prior to closing so the buyer could make an informed decision.
Stakes on unimproved land are even more important. A buyer needs to understand the side, front and back setbacks, especially if the lot is waterfront, in order to determine if what they want to build, can actually be constructed in the space the County has legally allocated. Shoreline can be tricky to measure; the County uses a straight-line approach or corner to corner. In many cases the shoreline meanders. The County decides based on regulations, how wide and far back the home must be on a lot, which is important to know to determine if the lot is suitable.
One of the reasons corner stakes are so important is they disclose any problems with the lot boundary lines. It is not uncommon in rural real estate for fences to meander back-and-forth across the property line. Further, which is also not uncommon, there can be large and small encroachments such as landscaping, fenced garden, a greenhouse, the parking pad, a hot tub, or shed, or my all-time favorite….an outhouse.
Lenders and buyers are typically accepting of a fence meandering a few inches over the line but anything more than 6-8 inches can be a problem. The lenders and buyers need to have the encroachment resolved prior to closing.
There are numerous remedies to an encroachment and the options include the following:
I will use a shed that encroaches onto the neighbor’s land as example.
Asking the offending neighbor to move their shed. One would think that this is a common solution and that the neighbor would agree to relocate the shed over to their own property. In many cases, this easy solution does not work out. For example, perhaps the neighbor bought the property and did not know where their corner stakes were, and they installed their shed 20 years ago. They like their shed in its current location, so they are unwilling to relocate and correct the encroachment. Another aspect could be that they bought the property with the shed already in that location. They assumed it was properly installed. Regardless, they do not want to move it.
With this scenario, the neighbor may have an adverse action claim for the shed’s location. Rarely, are all the adverse action’s components present, but regardless, in order to resolve an adverse action claim, a lawsuit must be filed. This makes for a costly and tough relationship with the neighbor and most people choose to avoid it.
Per Washington statue, the components of a real estate adverse action that must be met are listed below:
- Continuous: the disseissor has been in continuous possession of the property in question.
- Hostile: the disseissor is using the property without an existing agreement or license from the landowner as with a written easement or rent agreement.
- Open and notorious: the disseissor’s possession of the property is obvious to anyone observing it.
- Actual: the disseissor is actively in possession of the property, including maintaining it and (depending on state law) paying taxation upon it.
- Exclusive: the disseissor is using the property and excluding others from using it as well.
To avoid the lawsuit, a license, easement, or boundary line modifications (BLM) are the most common steps towards resolution. All must be drawn by a professional. Licenses or easements should be drawn by and attorney may cost around $1000 subject to the number of parties and complexity. The boundary line modification requires a surveyor and County approval. The surveyor’s fees range from $2000-$5000, depending on the level of difficulty.
All these solutions should be in written form, require mutual agreement by both parties and should be recorded and notarized to create a public resolution.
A license is an agreement between two parties that allows the encroachment to remain in place until such time as the license is revoked by the party that has granted it, (The Grantor). Some of the agreements have a revocation date specified or an event such as “upon the sale of the property” or “death of the user” (The Grantee).
An easement is an agreement between the two parties, but it runs with the land and is granted into perpetuity and therefore survives a sale of the property. The shed can stay in that location forever; however, they can also have a date certain or event certain; similar to a license. The document can be customized to meet the party’s expectations. The easement is recorded on the title and will show on both parcels; the burdened parcel is “subject to” and the benefiting parcel is “together with”.
In both documents it is prudent to have the user (Grantee) or recipient of the easement, hold harmless the burdened party (Grantor) for any injury, damage or loss caused by them. A sample would be the Grantee falls while loading up their shed.
The boundary line modification (BLM) is processed by a surveyor and basically the lot line is modified to allow a bump out where the shed is encroaching onto the adjacent property. These modifications can also be customized and can provide for an exchange of property. I.e. the one neighbor gets the shed location and the other neighbor gets some of the land owned by the encroaching neighbor in exchange. Boundary line modifications must be approved by the County and fees paid to them. The time allocation should be 3-6 weeks to process one.
In the case of any of these instruments, be sure to take into consideration your lender and the lender for the encroaching party. Lenders do not allow part of their collateral to be encumbered, altered, deeded, or exchanged without their consent. They have language in their deed of trust that you signed, that states changing their collateral without their consent, will constitute a default of the loan. For some lenders, the approval process can take 90 to 120 days as they have a low priority assigned to this function.
In all these remedy options, consideration can also be paid for the resolution. The neighbor that inadvertently encroached upon the other neighbor may feel bad and is willing to compensate that neighbor for the burden and future use of the land for the shed. Or the opposite, the neighbor with the burden, needs to clear their title to obtain a refinance or sell and is willing to pay the encroaching neighbor to resolve the issue in a timely manner. Both parties always believe they are in the right and that is why there can be conflicts around real estate.
Again, large encroachments must be resolved for the lender, the buyer and title company to be accepting of the property. Most lenders I have worked with, and all title firms are accepting of a license, an easement or boundary line modification as a remedy.
Over the years, I have negotiated remedies to encroachments on numerous properties. Real estate in the San Juan is rural and in the old days, corner stakes weren’t adequately located and, in some cases, the result was encroachments. Further, property was bought and sold numerous times without corner stakes therefore, these encroachments were passed on to the next unsuspecting buyer.
If you are buying real estate, it is imperative to ask for the corners to be located by a surveyor as part of the contract. Even if the seller rejects your request, you should pay for a surveyor to locate the corners during a feasibility study. Buyers should not close on property without corner stakes determined. Sellers should have their corners marked prior to listing the property for sale. If they find a problem, they can resolve it before a buyer is in contract with them or at least disclose it properly.
There are no verbal agreements in real estate. If you verbally allow your neighbor to store his shed on your property without proper agreements in place, such as a license, easement, or boundary line modification, it will be problematic in the future.
The Polaris maps that are on the San Juan County website are not a survey, those lot boundary lines are for tax assessment purposes only and are approximate. Those aerials should not be relied upon for your purchasing decision. Further, the apps such as a Homesnap do not make you a surveyor. Those apps are handy to walk an approximate boundary line but in no event are they a survey for the property and should not be relied upon as one.
An agent is not licensed to mark corner stakes and should never attempt to do so. They call that pink tape “sue me tape” for a good reason.
As always, this article is merely for information purposes and should not be relied upon as advice. You should consult with your attorney or your surveyor if you have any questions about your contract and your boundary lines.
Merri Ann Simonson
Coldwell Banker San Juan Islands Inc