Is the neighbors retaining wall an encroachment?

**mmzymxf** · 01-27-2011, 04:20 PM

We are about to close a house purchase, however, during the survey, we found the neighbors retaining wall that holds their soil is entirely on the property being purchased (encroached by about close to 1 foot), although the wall does belong to the neighbor - maybe the builder of the wall was not aware of the exact property line.

I am wondering how big this issue is. If the seller is aware of this issue, is he/she supposed to disclose this as an encroachment? Thanks!

**Greg** · 01-28-2011, 07:19 AM

The only real issue is your ability to obtain title insurance. This problem can usually be cleared up with a letter signed by the neighbor. Ask you escrow agent/attorney.

**flash.investing** · 02-14-2011, 08:48 PM

Agreeing with the last poster - The title commitment issued by the title company with which you are probably closing as well, will have covered that wall in the survey report and legal description of the property. And yes, as long as they are still willing to issue title insurance, it is not a big deal. You will probably have to sign a document at closing stating that you are aware of the retention wall and that it encroaches on your property by a foot. As long as you are o.k. with it, don't worry about it. And no, it is not the seller who is responsible for notifying you of the encroachment, but the title company. You get a copy of the survey as well as the title insurance commitment in the package of documents at closing.

**MikeAustin** · 03-07-2011, 07:50 PM

I suggest that you refer to your lawyer regarding this matter. Issues referring to a party wall usually can be settled easily depending on the agreements.

Fhil F.
Social Media Manager
on behalf of Mike Austin

**rduncan610** · 04-28-2011, 01:21 PM

I'm a Texas real estate lawyer.

Normally if someone encroaches without permission you can kick them off. An exception is when there has been adverse possession, where the encroachment has been open and without permission for a certain period of time.
Best to check with a local lawyer for options. One thing I have done down here is to give the neighbor permission for a certain time period and reserving the right to boot them when the time is up or for whatever other reasons you might have. Beggers can't be choosers.