We are in escrow to close on a house.The home is being sold out via a trust and we found out 2 weeks before close of escrow that a small portion of the driveway is on the neighbor’s property. We found out that the drive-way was a hand-shake deal between the previous owner and the neighbor. The sellers tried to get an easement agreement with the neighbor; the neighbor refuses to sign the easement. In the meantime we moved into the seller’s home because a) it was unoccupied, b) we had sold our house with the intent of buying the new place c) the sellers told us they have hired a lawyer and the whole deal should be over in 30 days.
It is now 2 ways past escrow. Since the neighbor does not want to sign the easement, the seller wants to move a portion of the driveway. This house is on a hill, with a steep driveway. We are concerned that if we move the driveway, then fire trucks or any delivery person will not be able to reach the house (the movers, with the existing curvature of the driveway could not reach the house). What are our options if we want to get out of this contract and still get our full deposit back? Thank you.
1.) This issue is best resolved before close of escrow. Understanding the cost, the implications, and possible solutions is critical to making a decision on whether or not to follow through with the purchase. Since you have already move into the house and I assume some money has been exchanged it is best to resolve it instead of cancelling the deal. Work it out with the seller to find an acceptable solution to all regarding the easement and/or the driveway.
2.) If a newly disclosed issue and its possible solutions effect the value perception of the property, this could be a solid enough reason to cancel and retain your deposit. However, the only way to be sure that you are not at risk for breach of contract is to consult with an attorney.
3.) If there may also be other methods of keeping the easement under adverse possession and certainly an attorney can help evaluation the situation to see if it applies in this case. A true survey may be needed as well help from the chain of title via the title company used during the transaction to understand where exactly the property line resides and how it has transferred with either lot.
4.) If the previous owner wants to move drive way it would seem most appropriate to make sure it is a drive way that does not create safety hazards.
I would highly recommend you consult with a real estate attorney immediately before proceeding with close of escrow or canceling the contract.