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Owner feels misled about property he purchased

August 9, 2019
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

I love your column in the Cape Coral Breeze. As a faithful reader, I applaud you for educating myself and the general public about Florida real estate.

I purchased my home on Southwest 20th Street, Cape Coral, in August of 2017. In January of this year, the person who owns the empty lot next to me had a survey done of their property and told me my fence was on their property and must be moved. Of course, I complied with their request but I feel I was cheated when I bought the house because I thought I paid for, and was getting the whole fenced in area but apparently I am not. I paid cash for the house and did not have a survey done of my property. I spoke to the real estate agent I purchased the property from and they blamed then title company. The title company said this is not their problem and blamed the real estate agent. What is my recourse? I lost approximately 5 feet of footage along the width of my property, this is a large amount of square footage. Due to this issue I feel I was misled about the property when I purchased it and deserve some compensation.

- Tom R.

Dear Tom:

Thank you for this question. Based on the facts as presented, it is likely not the title company's issue. The title insurance policy likely excludes any defects that a survey would have uncovered. Unless the real estate agent had direct knowledge that the fence encroached, there likely would be no liability for either the listing or selling Realtor, either. Your only recourse, based on your comments, would be against the prior owner of the house. They likely signed documents as part of the closing that there were no encroachments. Also, if there was any type of code complaint made, a lack of permit, or other proof that the prior owner knew of the fence being over the line, that would be your potential target.

Even in Cape Coral, where properties are fairly homogeneous, a survey is always recommended, particularly for existing homes. I am sorry to hear this occurred, but if you had been my client, I would have recommended the survey be acquired before going forward with a purchase. In conclusion, reaching out to the previous owners can't hurt. They may have had no idea about the encroachment, but may do the right thing and provide compensation for the lost space you expected.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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