We were in the process of buying a student house rental. The house has no parking in the front, but had steps going down the rear yard into a parking lot that allows parking by permit. It turns out the steps were encroaching completely on the restraunts property behind the house. While at the closing today my attorney presents me with an encroachment agreement. The seller of the house and the owner of the restaurant signed the encroachment agreement. The agreement says the steps will be removed and portions of the deck may be removed in the future should restaurant owner need to sell or refinance. This agreement is made up after the contract, but signed directly before closing. My attorney knew about the agreement, but never informed me of it. The important piece is the steps to the parking lot were removed from the deck and rear of the house leading to the parking lot. As a result, the house has no parking available since street parking isn’t allowed. This devalues the house due to no parking. As such, we wouldn’t close due to the removal of the steps and the encroachment agreement. My attorney should have informed us of the encroachment agreement. As such, sellers are trying to keep the contract deposit due to us walking away. I don’t understand how an encroachment agreement can be done after contract, but before closing. Doesn’t this materially change the house? Shouldn’t the buyers be informed and part of the agreement since it impacts the house value? --107.242.xxx.x

Yes, you should get your money back. They might be able to push keeping it based on you not doing a survey, but who does? They did change the wholeness of the property in the way that you knew it by signing that. Good job not closing! I would've been hot. I wouldn't use that attorney again either. --50.32.xxx.xxx

Good luck getting your earnest money back. You may end up in front of a judge. --64.251.xxx.xxx

While you waiting to get before a judge, file a lis pendems which gives public notification that a lawsuit has been filed concerning that real estate. It will in all likely hood prevent the property sale until the law suit is resolved. --47.157.xxx.xxx

I would file a complaint with your state bar association. You can contact the state bar and find out your state's particular rules for filing your complaint. It sounds like he is culpable in this mess. And, if you should fail to get your earnest money back, then I would sue the attorney for that money as well. --50.45.xxx.xx

--100.4.xx.xxx

The seller did or updated the survey. I was shared with me st closing along with the encroachment agreement. The encroachment agreement was signed May 18 th a week before closing. The bank informed my attorney of the issue and required the agreement. My attorney admitted knowing the issue, but not brining it to my attention. He didn’t think it was a big issue and was trying to get the property to close. The other property owner who owns the restaurant and signed the encroachment deal is also a client of the attorney we used...conflict of interest? Anyway, my rights were not protected and I should of been informed of the deal instead of using this back door approsch. --107.242.xxx.x

Never use the same attorney as the seller... You need someone to represent your interest and our interest alone (which is why if a real estate agent is involved, I find my own) Yes, it does change the contract and what you thought you were buying. You should be able to back out without losing your earnest money. You may have to take this court and the threat of such may be enough to get them to give your money back. You may also need to find another attorney to represent you in this. --108.44.xx.xxx

Anyone reading this; do not use the same attorney the seller is using unless that is the trusted/proven attorney you have already been using for some time. --100.4.xx.xxx

We actually had our own attorney. He just didn’t represent us well .our attorney actually I mr he will hunt us down if we don’t pay him. This was his largest concern....crazy --107.242.xxx.x

To make sure I understand this, you learned about this problem at the close? If so, that's messed up.. this defect should've been brought to your attention beforehand. I'd demand appraisal and inspection monies and deposit be returned.. or file a suit. The lis pendens idea is a good one also... --174.234.xxx.xxx

I found this out at the closing table. My bank announced my attorney was informed. I’m going to submit a demand letter to seller and my attorney. I will file a claim, but need to figure out if this is a small claims case? Any help would be appreciated. --107.242.xxx.x

How much is the contract deposit that the sellers is trying to keep? --100.4.xx.xxx

I would stop with the DIY efforts and hire a new, mean bulldog atty. Today if possible --174.225.xxx.xxx

Do you think its worth hiring a new attorney? This would most likely find its ways to small claims court. --68.192.xxx.xxx

Small claims court only allows you $3000 in my area. So if it is less, that is probably the place to take it. Otherwise hire the attorney for court. If you find another attorney, they could possibly get the money's back with just a strong letter sent to the parties. It is amazing how just a letter in legalese on a letterhead will move people. --108.44.xx.xxx

Hire a new lawyer from a different county that will represent you against the seller and lawyer. --172.58.xxx.xxx

The attorney is trying to charge me $950 for his services. He already stated he will hunt me down if I don’t pay. The seller is trying to hold $1k in the deposit.i incurred other cost with the transaction. I do agree this would be malpractice on the part of my attorney. This is even more true since he has a client relationship with the restaurant owner who signed and enchroschment agreement with the seller and my attorney didn’t disclose it. I’m trying to figure out a plan of action since the dollar amounts aren’t too large, but I should be made whole. --107.242.xxx.x

Just the threat of a Bar complaint against this attorney should have him begging you for forgiveness and to help you get your earnest money back from the seller as well as forgive his fee. --50.45.xxx.xx

also agree your attorney was wrong. I've dealt with a lot of attorneys throughout the years and have never heard one say anything close to "I'll hunt you down". You need your own lawyer to help with this, not filing a small claims case. --72.70.xxx.xx

How long has the house had those steps going down the rear yard into that parking lot that allows parking by permit? Depending upon how long the steps were there, a prescriptive easement may have been created entitling the owner of the house to keep them there to access the parking lot. If there was a prescriptive easement, entering into the encroachment agreement may have mucked things up. You need a savvy real estate attorney to hep you with this. --100.6.xx.xxx

These steps were on the property in July of 2007. I believe this is when the current owner purchased the property. I'm sure they were on the property even earlier if we go back further. These are homes built in the 1900s. It so happened they were removed right before we closed with a deal I was not aware of until closing. --68.192.xxx.xxx

Hey Dan, if the seller is willing to discount the price because of the change, would you be willing to go forward with the deal? --100.4.xx.xxx

Where did the easement agreement originate? Was it prepared by seller, the bank, your attorney, restaurant's attorney? --100.6.xx.xxx

The encroachment agreement was prepared by sellers attorney and signed by the seller and restraint owner. The bank was requiring this encroachment to be addressed. It was brought to the attention of my attorney, but not to me. --107.242.xxx.xx

The seller was already coming to the table with 3k to close the deal. My attorney even mentioned the restaurant owner wasn’t willing to allow access because I would be an out of town landlord. It must of been a conversation along the time after contract, but before closing. Those steps must have been present for many years. It’s a very small town so who knows how the politics work. The restaurant owner is also a client of my attorney. I think the seller just cost himself a home worth a lot less since parking is so valuable for student housing. --107.242.xxx.xx

My long-term local attorney suggest I write a letter to the “student housing” attorney. She suggested if we can’t cone to anagreement we may need to hire counsel to address the legal issues. It does appear the “Student housing” attorney may have a conflict of interest and may have crossed some lines. I was hoping this issue would just die. However, the bank is now looking to recover their fees. This may very well get a bit messy. I don’t like folks who are dishonest...this may be a case of dishonesty!! --107.77.xxx.xx

I cannot believe an attorney representing a client would neither object to nor mention to his client, the existence of such an easement agreement, but rather blindside you with it a closing. Your attorney is either inept or in collusion with the other parties in not protecting your interests in this transaction. The removal of the access to the parking lot changed the highest and best use of the property and resulted in diminution of value. Your attorney's focus should not have been to get the transaction to close at all costs and thus, collect his fee. He had a fiduciary duty to YOU to protect your interests. And as a additional insult, he tells you he will hunt you down if you don't pay him! I would have already filed a complaint with the NY Bar! --100.6.xx.xxx

I was referring to the student housing attorney as the one who did the deal. I have an attorney in my local market who does my deals. I did have a conversation with her today. I will be sending the attorney who did the deal a demand letter. I’m waiting to get numbers from the bank for their fees so I can include those in the letter too. I’m leaning towards filing a complaint with the Bar Association. I have learned over the years to take a step back to gather my thoughts and compile a plan of action. I’ve really appreciate the help off everyone on this site. On the same note, it was suggested to file a lis pendens against the property, but I may not be able to take that action since I don’t have a claim against the house, but rather a monetary claim against the seller and/or the attorney. At this point, it appears I may have a claim against the attorney and may need to focus on him to be made whole. --107.77.xxx.xx

I ALWAYS use MY attorney for real estate ... no matter how big or small. I can and do a lot of work myself and hand it to him to be used. I read on here quite often about using a title company and I realize on some areas that is who is routinely used as a settlement agent but I want a lawyer representing me ... and it costs the same. I would never use a settlement agent suggested by a lender, seller, realtor, etc. --72.70.xxx.xx

NY requires title company to be used. --68.192.xxx.xxx

With this issue. I wanted to see how the attorney who handled the closing was going to handle the situation regarding his fee. Well I received an email requesting his fee or he will file a civil case. Anyway, I’m putting together a demand letter on my end per the suggestion of my local attorney. I’m searching for an attorney close to the property in the Cortland area. I will be going after the attorney who handled the deal for my cost that was lost due to his lack of disclosure and the money in Escrow. Any suggestions of an attorney who can handle this? Ty Dan --209.140.xx.xxx