Thinking about selling your home? What if I said that the fence you built a couple years ago may need to be demolished first as it encroaches onto your neighbor’s property?
It is often a requirement in any real estate transaction that the seller will warrant against the following: (1) Encroachments onto neighboring lands; and (2) Structures/improvements such as a deck or garage which do not comply with municipal bylaws.
For those who don’t know, an encroachment can be loosely defined as any portion of a building, fence, driveway, retaining wall or other structure which extends onto neighboring property.
A Real Property Report (RPR) is the legal document used to determine all encroachments by and against your property as well as the property’s compliance with municipal bylaws. The seller in a real estate transaction is generally required to provide an RPR that reflects the “current state of improvement on the property” to the buyer as a term of their purchase agreement.
An experienced real estate lawyer can minimize the time, money, and frustrations spent on these requirements if consulted early on in the selling process. The services typically provided by a lawyer in this respect would include:
- Determining whether a new RPR is required in order to ensure the timely sale of your home and minimize your liabilities as the seller.
o Was a fence, deck or other improvement constructed on the property since the last RPR?
- Interpreting the new RPR to determine whether any encroachment agreements or municipal endorsements must be obtained.
o Does an improvement encroach onto neighboring lands? Is it compliant with the municipality’s
bylaws and building regulations?
- Negotiating with adjacent property owners and municipalities in order to ensure that the required encroachment agreements/municipal endorsements are obtained in a timely manner and on favorable terms to the seller.
o Formal permission is needed in order to keep improvements that encroach onto neighboring lands.
Formal permission is also required in order to keep improvements which do not comply with
municipal bylaws and building regulations.
- Ensuring that encroachment agreements are registered at the appropriate land titles office.
o Registering at the appropriate land titles office ensures that an agreement will be enforceable as
against successor owners of the neighboring property.
Experienced lawyers will also educate the seller on the options available should a required encroachment agreement or municipal endorsement be unobtainable.
Potential buyers will often turn away from properties where the concerns surrounding an RPR have not been addressed in advance. As such, one of the best ways to maximize the probability of selling your home is to rectify any potential issues as soon as possible after the decision to sell has been made.
Should you have further questions about RPR’s or other real estate transaction issues, please feel free to contact myself or any one of my knowledgeable colleagues and they would be happy to assist you.
Stephen C. Mogdan