Real Estate

Real Estate Maui Now, Ask the Expert: What to Do About an Encroaching Fence?

March 18, 2016, 9:25 AM HST
* Updated April 8, 12:40 PM
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Real Estate Maui Now: Ask the Expert with Dave Futch.

Real Estate Maui Now: Ask the Expert with Dave Futch.

Today’s question has been answered by Dave Futch of Coldwell Banker Island Properties.

Dear REMN Expert,

Q: What can I do about a neighboring fence that encroaches onto property I am planning to buy?

A: There are several things that can happen when you discover that a fence or a structure is weaving in and out of your property line.

You must decided if:

  • Is it acceptable?
  • Is it not acceptable and you would like some sort of resolution.
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When you go to the resolution, you can go to the owner (the current seller) and have them create an Encroachment Agreement. This is a document that would be recorded at the bureau of conveyances and runs with the land so that you and or your buyers, if you ever sell, don’t have to worry about the encroachment. It will become legalized and accepted.

You can have the encroachment removed. If it is a fence, maybe you pull the fence posts and move the fence back into line.

You can also simply cancel escrow, because encroachments are something that are worthy of an escrow cancellation without penalties.

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There is one more thing to consider. It is called the “de minimus.” This is a ruling that says that if the encroachment is six inches or less, it is acceptable that is not actually described as an encroachment.

It may bob and weave in and out of the property by as much as three to six or more inches. This will not be a problem with your title or getting loans or anything like that.

If you have any questions about this, “Get in Touch with Dave Futch.” Call him at (808) 280-9600.

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