Legal Question in Real Estate Law in Maryland

Re: Fence encroachment

Generally, in Maryland the cause of action for misrepresentation by failure to disclose requires that the plaintiff show:

1. a duty to disclose

2. failure to disclose a material fact

3. with intent to deceive

4. plaintiff acts in justifiable reliance upon the concealment

5. plaintiff suffers damage as a result of the concealment (see Pleading Causes of Action in Maryland, Sandler & Archibald, 1998).

Application of this general rule to the facts of your case is probably more complicated -- i.e. to determine whether there was anything that was concealed, if so whether there was any intent to decieve, etc.

You should consult with an attorney knowledgeable about litigating real property disputes quickly to make sure that you review all options -- some of which may be time sensitive.

Please feel free to call if you would like to chat about this with me briefly to see if I can be of assistance.

Lawrence R. Holzman, Esquire

Joseph, Greenwald & Laake, P.A.

6404 Ivy Lane, Suite 400

Greenbelt, MD 20770

(301) 220-2200

fax (301) 220-1214

Disclaimer: Please note that the posting of this response is not intended to constitute legal advice. You should contact an attorney to obtain information applicable to your situation. This posting is not confidential or privileged and does not create an attorney/client relationship.

Re: Fence encroachment

I don't think you're responsible under the fact scenario you presented. The reason is that the buyer of your property, by virtue of the fact that he had a survey prepared prior to closing on the sale, was aware of the encroachment and nonetheless went ahead with consummation of the transaction. You did not conceal anything; therefore there was no misrepresentation. They should direct their concern to the owner of the adjacent property before he acquires the property inside his fence by adverse possession.

Re: Fence encroachment

The statement by the neighbor is a casual encounter which may or may not form a basis of "knowledge" on your part (i.e., a requirement for recovery by the buyer). A survey was conducted and this is a firm basis of reliance. A skilled attorney will be able to promptly resolve this matter with a memorandum of clarification. On the other hand, the factual basis of the encroachment has alot to bear on the ease of resolution. Alternatively, a review of the representations made in the contract of sale, and the realtor's contract of representation (both buyer's contract and seller's contract) may resolve the matter. Property matters in Maryland are precise. Assistance of an attorney is recommended.

Law Offices of G. Joseph Holthaus III

(410) 799-9002