Fred Griffin Tallahassee Real Estate, Licensed Florida Real Estate Broker (Fred Griffin Real Estate)

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Ken Jones, ASA | Broker & Appraiser
Kenneth J. Jones, Inc./Global Valuations - Newark, NJ
Commercial Real Estate Broker & Appraiser

Fred Griffin It's VERY unusual that a lender won't accept the title exception.

But, in that case, I would create an easement that could be recorded and become part of the title. This will eliminate any violation and would likely no longer create an exception in the title.

Hope this suggestion helps.

Dec 08, 2018 09:06 AM
Francine Viola
Coldwell Banker Evergreen Olympic Realty, Olympia WA - Olympia, WA
REALTOR®, In Tune with your Real Estate Needs

I’m surprised you can’t do a boundary line adjustment as that would be my first choice of action.  If you cannot get any type of exception for this encroachment, then the pool might need to be taken out.  But an attorney’s advice might be cheaper than the pool removal

Dec 08, 2018 08:56 AM
Candice A. Donofrio
Next Wave RE Investments LLC Bullhead City AZ Commercial RE Broker - Fort Mohave, AZ
928-201-4BHC (4242) call/text

I actually know the answer to this having experienced it with one of Carmen's houses. One guy gives the other guy a license to use that part of his property. It can run with the property and allow that encroachment to take place. You need to talk to a real estate attorney about the possibility of drawing one up that will satisfy title.

Dec 08, 2018 08:46 AM
Richard Bazinet /MBA, CRS, ABR
West USA Realty - Scottsdale, AZ
Phoenix Scottsdale. Sellers, Buyers & Relocations

My first answer is SOL. Let me think about that one. Anything with encroachments and clouded titles are fraught with issues today and tomorrow into the future. 

It's seems that the biggest issue is that the county will not change the lot line. With an encroachment, title cannot be insured and forever there will be an encroachment. The problem with the encroachment is that there may also be a county or city ordinance that for any construction, there may be a buffer or setback (like 5 to 10 feet) the the property line - so now that's another problem where city/county may order the pool demolished. Lender will not lend on clouded/encroached title. Not this new buyer, but in the future, there may be an un-cooperating buyer (like 2 buyers down the road) and file lawsuit against lot #1 owner. It's a royal mess.

Seller may be able to give away the ownership rights to a certain amount of lot 1 to the new owner of lot 2? Problem is part of the pool is now owned by lot 2 owner??? That's an AZ thing, seen it before. I don't know how it's done in Florida.

At the end of the day, lot 1 owner, may sadly have to redo/move the pool  back on lot 1 and pay for his mistake. That would fix the problem - and likely still the 'cheapest' solution.

Dec 08, 2018 07:58 AM
Valeria Mola
SIB Realty - Miami, Sunny Isles Beach - Sunny Isles Beach, FL
305-607-0709 SIB Realty Condos for Sale and Rent

What a great question. Thank you, Fred. I am going to read answers and learn something new. 

Dec 08, 2018 09:28 AM
Debe Maxwell, CRS | The Maxwell House Group | RE/MAX Executive | (704) 491-3310 - Charlotte, NC
The right Charlotte REALTOR!

I wouldn't let my buyer buy because this issue will impact then down the road as well.

I would seek a county planning/permitting Board member and approach it from that direction. Seller should pay to have the surveyor re-draw the lines or at least have an attorney draw up & record an easement. 

Title policy coverage is one thing when there is a structure on the property (lenders will often accept) but, raw land is a whole other least in my experience.

Good luck, Fred!

Dec 08, 2018 09:14 AM
Nina Hollander, Broker
Coldwell Banker Realty - Charlotte, NC
Your Greater Charlotte Realtor

I guess it comes down to how badly the seller wants to sell. Waiting for an all cash buyer in Charlotte for something like this could take a while. But can't they write an easement into the title?

Dec 08, 2018 09:07 AM
Inna Ivchenko
Barcode Properties - Encino, CA
Realtor® • GRI • HAFA • PSC Calabasas CA

I just sold the home with a similar situation but it was a driveway encroachment. Buyer was disclosed and acknowledged it, bought a property as is with no objections or concerns. Yes, he has the right to go after his neighbor if he even needs those few sqft and make his neighbor life very uncomfortable, but he has no plans to do so at the moment.

Good luck.

Dec 08, 2018 10:34 AM
Evelina Tsigelnitskaya
SIB Realty - Sunny Isles Beach, FL 305-931-6931

Interesting question. 

Reading answers. 

Thank you, Fred.

Dec 08, 2018 09:53 AM
Richie Alan Naggar
people first...then business Ran Right Realty - Riverside, CA
agent & author

Buyer can waive the encroachment and grant an easement as approved by Title insurance at that time. I would drive a decent bargain with the next buyer and then sweeten the pot (cash) as consideration. Title legal departments have dealt with these issues as they are not new. I am surprised they don't have a remedy as this is very solvable

Dec 08, 2018 08:50 AM
Wayne Martin
Wayne M Martin - Chicago, IL
Real Estate Broker - Retired

If the title company will issue an encroachment note and the encroachment does not effect any setback requirements, there should be no issue. Check with some of our AR member mortgage brokers. I bet they have sources.

Dec 08, 2018 08:14 AM
Bob Crane
Woodland Management Service / Woodland Real Estate, EXP - Stevens Point, WI
Forestland Experts! 715-204-9671

Share the pool with the new neighbors.

Dec 08, 2018 10:57 AM
Annette Lawrence , Palm Harbor, FL 727-420-4041
ReMax Realtec Group - Palm Harbor, FL
Making FLORIDA Real Estate EZ

Hire an attorney.

Lot lines are redrawn often. My last event was a builder put the drive in the wrong spot according to the lot lines. Neighbors and community made no protest and lines were changed. I simply followed the county process.

However, the county may have elected to engage in a '**ing'  contest since their authority was ignored when the pool was constructed. Hire an attorney who is an influencer (works with builders) in the county.  However that may prove more costly than the alternative corrective measures. Of course the seller doesn't want to. I don't want to pay my taxes...but sometimes we do things we don't like. Here's the rub, now that the county knows about a 'non-conforming' property, this issue may not disappear.

Dec 08, 2018 07:55 AM
Sandy Padula and Norm Padula, JD, GRI
HomeSmart Realty West & Lend Smart Mortgage, Llc. - Carlsbad, CA
Presence, Persistence & Perseverance

Any thoughts about setting the pool up as a common area and write HOA docs indicating that fact?  Just a thought.

Dec 08, 2018 07:53 AM
Silvia Dukes PA, Broker Associate, CRS, CIPS, SRES
Tropic Shores Realty - Ich spreche Deutsch! - Spring Hill, FL
Florida Waterfront and Country Club Living

Would it be possible to create an easement for the "life"' of the pool? 

Dec 08, 2018 01:11 PM
Ryan Huggins - Thousand Oaks, CA - Thousand Oaks, CA
Residential Real Estate and Investment Properties

There is a lot near me that has encroachements on two sides.  House on one driveway on another.  It was bought and is sitting vacant for the last 2 years.  No idea what can be done there.


Maybe get an easement from the buyer to the seller for the use of the land with the encroachment.  See if the seller can grant himself the easement too.

Dec 08, 2018 11:57 AM
Roy Kelley
Realty Group Referrals - Gaithersburg, MD

Relocate the pool.

Dec 08, 2018 10:16 AM
Michael Jacobs
Pasadena, CA
Los Angeles Pasadena 818.516.4393

Hello Fred - not an ideal situation but not impossible to solve depending on motivation by each party. Interesting answer so far. 

Dec 08, 2018 09:35 AM
Bob "RealMan" Timm
Ward County Notary Services - Minot, ND
Owner of Ward Co. Notary Services, retired Realtor

Fred, solution #1 seems the best solution but I'd want to know how old the pool is and it's condition. Could a contractor "re-size" the pool?

Dec 08, 2018 09:35 AM
Sam Shueh
(408) 425-1601 - San Jose, CA
mba, cdpe, reopro, pe

Dead beat. Hopeless case. 

Dec 08, 2018 09:29 AM
Dave Martin (703) 585-4687
Fairfax Realty - Fairfax, VA
Making Realty Dreams a Reality #WeWillGetYouHome

Grant an easement in perpetuity?

Look for other lenders?

Those are the first two that came to mind for me. Good luck Fred 

Dec 13, 2018 07:25 PM
Jeff Pearl
RE/MAX Distinctive / LIC in VA - Lovettsville, VA
Full Service Full Time Realtor

If he owns both lots, and they won't allow a boundary line adjustment, then I would just create an easement for the pool to encroach. Or just adjust the wall/shape of the pool. Build a block wall inside the property line and spray it with gunite. Check with a pool company. If it was mine, I'd demo and rebuild the pool so there is no encroachment. Many buyers don't like easements.

Dec 08, 2018 01:36 PM
Ron and Alexandra Seigel
Napa Consultants - Carpinteria, CA
Luxury Real Estate Branding, Marketing & Strategy


I read all the comments,  and the answers. That is what when you get when you don't list with an expert...LOL

Dec 08, 2018 01:03 PM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate

Oopsy daisy ... oh the things we do that end up biting us in the arse and costing us MONEY. 
I am certain there is a solution. Consult with a real estate attorney.

Dec 08, 2018 12:24 PM
Joan Cox
House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

Have not run into this at all, so reading answers.

Dec 12, 2018 07:59 AM
William Feela
Realtor, Whispering Pines Realty 651-674-5999 No.

I would consider a temporary easement saying when the pool needs

Major repairs, the size  be redone at that time

Just a thought

Dec 10, 2018 10:14 AM
Debra Leisek
Bay Realty,Inc Homer Alaska - Homer, AK

Create an easement We do it all the time... if it is a garage or structure we create an easement for the life of the structure and if it burns down or needs replaced the easment becomes null.  I dont know how that would work with a pool.  But there is no reason the seller cant grant himself an easement.


Dec 10, 2018 12:28 AM
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

I doubt that a cash buyer would go for this as he won't really be able to sell it.  It looks like the pool may have to come out.  

Unless you can get a local variance.

Dec 09, 2018 06:54 AM
Kevin J. May
Florida Supreme Realty - Hobe Sound, FL
Serving the Treasure & Paradise Coasts of Florida

Is the pool as old as the house? Dollar wise tearing it out would be the best choice I believe.

Dec 09, 2018 04:57 AM
Gita Bantwal
RE/MAX Centre Realtors - Warwick, PA
REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel

Good luck.

Dec 09, 2018 04:12 AM
Barbara Todaro
RE/MAX Executive Realty - Retired - Franklin, MA
Previously Affiliated with The Todaro Team

if he deeds that portion of land to the abutting lot, will he need a variance for his lot...get an easement for that portion of the pool..... messy.....or is it within the zoning requirements....

maybe an abutter will give an easement on the other side of the property to satisfy the sq. ft. requirement.... there's always a way....and then redescribe the lot....

Dec 08, 2018 03:08 PM