Legal Question in Real Estate Law in New Jersey
We are purchasing a home in NJ. Four days prior to closing, a survey was completed and it was discovered that more then half of the back yard is not actually owned by the sellers, but rather the township. Visually, you cannot tell this, as the yard is completely fenced in, and the fence encloses the portion owned by the sellers as well as the part by the township visually as one piece of land. The sellers also have a swing set which is in the backyard and is built entirely on the township�s land. Position of the swing set is to be transferred to us upon sale of the house per the contract. There are no markers in the yard showing boundary lines other then the fence. The land owned by the township is also zoned for light industrial, and the house is in the residential zone. In the seller disclosure part of the contract, when asked if they were aware of any zoning violations or encroachments on adjacent properties, they checked no. Also in the seller disclosure part, when asked if they had a survey, they checked yes. We were never given a copy of this survey. Our realtor says he never received the survey, and never pressed the issue because we were getting our own survey, and he said that he only requests the old survey when a problem with it is disclosed. The seller�s agent says she thought she gave us a survey.
Without seeing the old survey, it is impossible for us to know if they actually knew about the ownership problem or not. Several clues point to yes though. First, they have their own survey, so they must have seen the problem then. Secondly, the advertised lot size matches the recent survey. So they knew the actual size of the lot. This may also be a fault of ours for not measuring, but we did not measure it right away because no problems were disclosed, so we assumed the fenced in lot was entirely one property. The size of the lot is not stated anywhere in the contract, only in the advertised online listing. It was also revealed by a neighbor that the township came to him and asked him to purchase the land. We assume that if they came to him, they also came to the sellers and asked the same thing, but there is no way to prove that.
We contacted the township and they are willing to sell the land to us. The estimated cost of completing the required steps to actually own the land is around $1,000. I am asking for $2,500 to deal with this, to protect us from any hidden costs from this, to recover lost wages from time I had to take out of work to travel to the township offices and deal with the problem, as well as any future lost wages from having to finish the process of purchasing the land. If the sellers refuse this amount and back out of the deal, do we have a case against them? Do we have a case against the seller�s agent, or maybe even our own realtor?
2 Answers from Attorneys
Hello. This is Tina Nielsen Amodeo, Esq. This situation
Is one in which you should get a real estate attorney to negotiate for you.
The most important thing to me for you to insist upon is that at your closing
That a portion of the seller's proceeds be held back from them until and only until any purchase process for the township"s land is completed. The amount held back in escrow should be at least one and a half times the cost of the township land and your anticipated costs to get the land. You need a detailed escrow agreement that protects your rights, does not put you on the hook for any unknown costs or the known costs and clearly covers all obligations and rights of you and the sellers. If you wish to discuss this further, please feel free to contact my office by phone or e-mail. I wish you the best of luck with this really awful situation.
I agree with Tina that this should be resolved at or before the closing, with an appropriate escrow and escrow agreement in place. The Seller seems to be responsible as they should have been aware of the problem from the outset of their purchase, and should have insisted markers be placed at the time of their survey. This cost was not significant. Once the purchase is completed, you should have markers placed by the survey company, so there is no future problem.
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