When is an encroachment considered as such? Who has the authority/expertise to identify and blow the whistle on an encroachment? Who does not?
I was contacted by a potential client to perform a Boundary Line Adjustment to remedy a perceived encroachment. The parcel sits in a zoning district allowing for multi-unit dwellings. The main dwelling and all of the accessory buildings predate any zoning ordinance. The accessory buildings do not conform to current set-backs. There is a structure straddling the common boundary with an adjoining property: on one side of the structure is a garage appurtenant to one parcel, on the other is a rental unit appurtenant to the other parcel. After a 10 minute home inspection, the inspector contacted the title company and notified them of an encroachment. Now, title reports are being amended to reflect a cloud on title and the bank will not lend on the property. From 1918 until now there has never been a problem.
I am not a city mouse, but I seem to recall a term: PARTY WALL
It would very much vary by area I suspect. In places like the UK you can even have light encroachments (i.e. if I use to get sun and you build a shed that stops the sun, even if it's 100% well into your land, it's an encroachment)
In QLD the legislation holds that Encroachments are to be identified by a Surveyor. We have to look for encroachments when we do a boundary survey. If we find one we have to notify, in writing, all relevant parties (Encroacher and Encroached.)
Anyone can 'whistle blow' about it and complain, but a court will ask for the registered Survey plan before they do anything.
Have to go to answer the dinner bell ...
Try this : http://en.wikipedia.org/wiki/Right_to_light
Cheers,
Derek
[sarcasm]It would appear that in California at least, building inspectors are authorized to locate and identify boundary lines and encroachments thereon.
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Somehow I doubt your licensing board would concur.
A bit of an aside - in Arizona, Home Inspectors are licensed by the same Board that licenses Engineers, Surveyors, Architects, Geologists, etc. The Registrar of Contractors refused to accept licensing them, so they were given to our Board, who didn't have the ***** to say no. [sarcasm]So in Arizona maybe Home Inspectors can determine encroachments...[/sarcasm]
> A bit of an aside - in Arizona, Home Inspectors are licensed by the same Board that licenses Engineers, Surveyors, Architects, Geologists, etc.
In CA, I don't believe home inspectors are regulated by any State agency.
Legal/Non-conforming structures yes, encroachment...? How can it be an encroachment if for nearly 100 years the common wall has been respected as the boundary and no one has had any problem with it.
That's a great question. If someone is building a garage into my yard, it seems like I could "blow the whistle" on them. It seems like anyone in the world could walk up and state that the garage is encroaching as a matter of their opinion.
I would think that only a land surveyor's opinion, however, would be considered an "expert" opinion.
I don't know that the fact that a non-expert can, (or should be able to anyway) report an encroachment and the public agency should be doing anything about it. At a minimum, the public agency should get the opinion of an expert. Even then it isn't necessarily an encroachment by law. A court could make that kind of determination. Still I would hope that the opinion of an expert would be something that could be relied on until determined differently by a court.
If I see someone with a cancerous looking growth, do I need to be a doctor to point out his malady? Do I have to be a police officer, prosecuting attorney or judge to state I have witnessed a crime?
On a different note, is a surveyor in CA licensed to determine that a building that has been straddling a boundary since 1918 has created a change in boundary location?
Although you've left out a number of specific details as to your situation, the general concepts you've stated tend to suggest you support that an established line is somehow bent by longtime occupation. If the line is truly un-ambiguous as to its location and the building does straddle the true boundary, then it is a challenge to address from a boundary retracement persective. If however the building might memorialize the original boundary's intended location, then you have a totally different situation, and one which was not portrayed in your original post.
I couldn't agree more, Tom. What is happening is really a travesty; a non-expert is claiming an encroachment and the title company is running with it. Judge/Jury/Executioner. The buyers bank will not lend and potential buyers in the future will have problems with funding. Not to mention the adjoiner is adversely affected as well.
I have potential solutions to the problem if I can't get Title to re-think this. Not going to be easy...
> Although you've left out a number of specific details as to your situation, the general concepts you've stated tend to suggest you support that an established line is somehow bent by longtime occupation. If the line is truly un-ambiguous as to its location and the building does straddle the true boundary, then it is a challenge to address from a boundary retracement persective. If however the building might memorialize the original boundary's intended location, then you have a totally different situation, and one which was not portrayed in your original post.
There is a common wall within the structure that has been respected as the boundary between the two properties owners since being erected. Other existing lines of occupation appear to be the same. I haven't measured it, I can't be certain if the product of a survey would coincide or not. I'll cross that bridge if and when it comes. However, the fact that someone untrained/unlicensed and otherwise not equipped to make that call has gone and caused a real problem for a lot of people and a local title co. is running with it, without bringing in an expert or even researching the matter further.
I understand your frustration with that unlicensed determination as to boundary location. All I can offer is that the individual does feel empowered to make those decisions and will continue unless you file a complaint for unlicensed activity.
My belief is that if it is obvious that the line passes through the house, then it is not so much an act of an unlicensed activity as it is of just someone simply stating the obvious.
On another note, if this situation falls under the realm of common interest development, even though it predates the Davis-Stirling Act, you may find guidance through it in how best to satisfy the needs of the title insurancer(s).
Here is a link to an http://www.amerisurv.com/PDF/TheAmericanSurveyor_Liuzzo-Encroachments_Jan-Feb2007.pd f">American Surveyor article written by Thomas A. Liuzzo, LS for the February 2007 issue. Food for thought...
It is obvious, on the surface. But after some research and speaking with individuals associated with the properties and know it's history, one must consider that there may not be an encroachment. By the way, the home inspector was on-site 10 minutes and charged $1,000 for his services.
Thank you for the tip, I will look down that avenue as well.
"In CA, I don't believe home inspectors are regulated by any State agency."
And a Title Co. is taking their word regarding a boundary location? I'd have a chat with the Title Co. manager!
"Legal/Non-conforming structures yes, encroachment...? How can it be an encroachment if for nearly 100 years the common wall has been respected as the boundary and no one has had any problem with it."
It isn't.
It's not so much of an unlicensed individual determining a boundary as it is someone not performing their due diligence prior to formulating an opinion and going on record with this opinion.
I have to correct a statement I made: The individual that made the original determination of an encroachment was not a home inspector but an appraiser.