I recently closed a transaction where I represented the seller.  The neighbor immediately to the east had a deck/stairs/fence system that was encroaching on my client’s property by about 10 inches.  It wasn’t clear though if the fence portion was part of the original deck, or was put there sometime after the deck was built.  My client had no knowledge of the when the fence was built, and the neighbor, who had lived there for twenty five years had no knowledge of when the fence appeared either.  The buyer, after receiving the survey, requested the fence by moved.  The real estate contract was silent about the issue so whose responsibility is the fence?

It’s hard to say and represents an issue that comes up all the time – responsibility for encroachments.  Unfortunately, our real estate contract does not specifically mention action that must be taken in the event of an encroachment so my advice is if there is every a possible issue, write it into the sales contract and await the survey.  As a buyer your best opportunity to negotiate is early on and if there is a fence that looks like it might not be on the property line – and it bothers you – be sure to note your desired course of action in the sales contract.  As a seller you are required to disclose (in DC) if you “know about” the encroachment. 

In the end the seller provided a small credit to the buyer to address the fence post closing.