Keeping Your Deal Afloat


Well, it’s summertime here in Florida and there is nothing better than a relaxing day laying out by the pool with your favorite refreshing drink. In this summer heat and hot market, more and more homes with the coveted feature are making splashes on the market. While owning a pool is every Floridian’s dream, potential encroachment issues can turn that summertime oasis into a potential deal-breaker.

Surveys are a vital part of any real estate transaction. They provide a thorough layout of the property and any improvements on the land. When a survey is conducted with the benefit of a title search, any easements or building setback lines are properly located and drawn in. In short, an easement grants an individual or entity access to the land for a specific purpose. In Florida, common easements that appear during a title search include drainage and utility easements, which grant utility companies access to the land for repair and maintenance of public utilities. Building setback lines, on the other hand, are a measurement set by developers or HOA’s which dictate how far back a dwelling or permanent structure must be from the property line.

With this information in hand, an attorney reviewing the survey can determine whether or not the coveted feature could pose an issue for your clients. Pool cages are some of the most common encroachments seen on surveys. When homeowners screen in their slice of heaven, the area effectively becomes an extension of the dwelling. This can pose issues when the pool was already encroaching into an easement or building setback line, however, these issues do not have to automatically sink your deal.

When a pool encroaches into an easement or setback line, it interferes with the purpose or uniform development of the community in the case of building setback lines, or the right of utility companies to maintain or repair what lies underneath the ground in the case of easements. In essence, a developer or utility company can force the removal of the encroachment at any moment which could potentially be a pricey task for your client! However, there are ways to rectify these issues that are far less expensive.

Here are some life rafts to keep your deal afloat when an encroachment exists:

• Variances: A variance can be granted by the governing HOA or local zoning office which in turn is recorded with the county. This instrument makes the once impermissible encroachment permissible and is specific to that encroachment.

• Plat Vacations: A plat vacation is a process in which a County can withdraw its interest it may have obtained through recordation of a plat. Interests that are often terminated come in the form of easements and the process by which they are terminated are outlined in Florida Statute.

• Modification to Restrictions: Modifying the restrictions is a process in which the members of the community vote to alter the governing documents in order to permit the encroachment.

• Seller Credits: If your client is willing to handle the issue at a later date, a credit from the seller is an option to get the deal to the closing table expeditiously.

• Escrow Hold Back: If the parties agree to resolve the issue shortly after closing, an escrow holdback can be an option that would allow for closing on time and handling of the encroachment post-close.

An experienced real estate attorney can typically resolve these issues quickly, and oftentimes for no additional fee if they are also handling the closing. If an encroachment is found, it is important to relax and know there are many methods to allow for your deal to proceed swimmingly to the closing table.

As always, should you have any questions regarding potential or existing encroachments, please reach out to your trusted local real estate attorney.



Jacob Van Duren, Esq.
Berlin Patten Ebling, PLLC

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

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