My neighbors fence is on my property. Now what ?

What do I do if my neighbors fence is on my property?  We run into problems like this all the time in real estate.  Fortunately my closing attorney, Kati Heller of McManamy, McLeod and Heller has provided us with some great information when dealing with these issues.

Implications of Building Line Encroachments
Information to Consider:

* Extent of Violation  (more or less than 10%)

* Age of Structure (more than 2 years?)

* Was a Variance Issued at time of Construction
Extent of Violation

Most title insurers will issue a lender’s title policy without exception if the violation is not extensive (i.e., not more than 10% encroachment). This is imperative for the loan to close.

Title insurers will NOT cover building line encroachments on owner’s title policies.  The violation/encroachment is a special exception from coverage if a current survey reveals the encroachment.
Age of Structure

Georgia law sets out a two-year statute of limitations on the enforcement of building line violations. So, if the violation has been in existence for more than two years, the owner can feel safe that no one will make them move their house. HOWEVER, if the house is destroyed (e.g., fire or tornado), then it would have to be rebuilt in compliance with the building setback line.
Was a Variance Issued

If a variance can be produced, the building setback line on the survey can be changed.  It is very difficult to find a variance unless a copy was kept when it was issued. There is no index or filing system for variances at the courthouse. Suggestions for finding a variance:

1. Call the builder and see if one was kept in the original file.

2. Call planning and zoning at the county Courthouse-sometimes a helpful clerk will be able to find one. 

3. Check the Seller’s original file to see if a copy was included at closing.

4. Look to see if the Seller’s owner’s title policy mentions the building line or the encroachment.

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