While growing up, I had the distinct privilege of sharing a room with my older sister. As some people may consider this more of an obligation or perhaps a jail sentence than a privilege, it was a privilege for me. We were fortunate that we were not only sisters but also very good friends. She was two years older than me, and she had no problem sharing anything she had with me, including her friends. We had a twin-size bunk bed in our room, and I was on the top bunk (where I could easily access the sparkles on the popcorn-like asbestos ceiling and snack on the lead-based paint peeling from the windowsill if I got hungry (fortunately, I didn’t have much of an appetite in my more formative years). We did, however, maintain a definite line down the center of the room in the space that did not occupy our bed. She kept all her “stuff” on one side, and I kept mine on the other. While I kept my side emphatically neat and ordered, she was systematic about her messiness. My clothes were neatly hung on hangers in the closet or folded in drawers, while hers were more easily accessed on the floor. It was rarely a problem as long as neither of us encroached upon the other’s space.

Encroaching can be a pretty big deal in real estate. In fact, it can quickly become a deal killer if not corrected. Formally defined, it is the unauthorized intrusion of a building, tree or other improvements onto a neighbor’s property. If the neighbor happens to be the city, or perhaps the U.S. Forest Service, the mitigation of such encroachment can become more formative.

Several weeks ago, I was contacted by a gentleman who wanted me to list his property. We met and walked the property, which consisted of a sizable home sitting on a very large, fully fenced lot. As a side note, this fence is locked, which will become relevant later in the story. Without going into too much detail, we made a game plan and I sent the file over to a title company, which, in turn, does a full search on the property. The search is for the purpose of verifying the name of the legal owner of the property and informing of any outstanding claims or liens against the property that would need to be cleared before a transfer of ownership. In this case, there was a notice of easement and encroachment violation attached to the title. Apparently, the seller had decided to go ahead and fence the property, including part of a trail owned by the U.S. Forest Service, which happened to be a recorded easement on the property (meaning you must legally provide open access), and forge a new trail outside of his property. This included removing trees, rocks and dirt on public land. For the record, this large undertaking can exact large consequences.

Giving this gentleman the benefit of the doubt, I called him to inform him of the results of the title search. Perhaps he didn’t know? As it turns out, he was fully aware. He stated that he was working on signatures in the area so he could have the encroachment violation removed from the title. While neighborhood signatures will certainly not be helpful or useful in this situation, his home is virtually unsellable until this cloud is cleared. I informed him of exactly that, at which time he informed me that he will not be using my services to list his property after all. He had decided to go with someone else. This was a moot point to me, since it would not be sellable regardless of who lists it.

Just as a clear space on the floor on my side of the room still brings a smile to my face, a clear title on a home brings pure joy to my soul. If I had an audience, I would simply put it this way, “Mr. Seller, tear down that fence,” and his house would be sellable and the world would be free to hike the trail in the way it was intended.

Jen Fischer is an associate broker and Realtor. She can be reached at 801-645-2134 or jen @jen-fischer.com.

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