Q. We closed on our first house, and someone complained about our fences. We got a notice on our door they aren’t legal. We checked with the building inspector, who said we have a solid fence in our front yard, not an “open” fence, so we have to get a zoning variance because it’s 6 feet tall and may need one for the pool. How does the seller get away with this and why didn’t anyone say anything before the closing? Our attorney says that it’s typical to buy “as is” and the title company should have told him. The title company has not responded. What do you think we should do?
A. This is one of the most common problems architects face when hired for your project to do an extension, a second floor, a deck, etc. We find out while doing the initial search that items are not on record, like the fence and pool you described. Often, the person doing the title search only checks for open permits, not for conditions on the site that were never filed.
When I spoke at the Bar Association two years ago, the attorneys attending were told that it was a good idea to have a licensed design professional take a look at the property for possible code issues that otherwise complicate the property conveyance process. So far, there have been few takers on the idea, even though this issue happens all the time. A friend recently boasted that his house was sold without any need to legalize the rear family room built 30 years ago, and to his knowledge he never had to pay additional taxes, as well, which seems to be the main reason why people avoid permits. Other reasons they avoid them are because of bad advice, a need to do things quickly by avoiding permit delays, or just because it’s cheaper not to have to spend the money on legitimate design professionals or permit fees. Unfortunately, you feel stuck with the problem, and because everyone else involved in the process of building and representing your legal interests seems pretty self-assured that you won’t take any legal steps to pursue them, they’re willing to keep doing this to others.
I once sat at a closing for a commercial building where closed permit documents were missing and the survey was clearly wrong (because the building was shown to be 2 feet onto the neighboring property), but both attorneys ignored me and advised proceeding with the closing, not even acknowledging that there was a legal problem to at least discuss. Later, as the architect for the same property, I had to address the problem when building officials wouldn’t accept the work that the new owner was proposing because the survey map didn’t match their records, and permits had never been applied for the items I discovered before closing. The new owner paid thousands of dollars to correct the problems, and did take legal action.
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