Buying Advice

Who Owns the Walls?

You may own your own home, but do you own the walls around your home? Do you have shared walls also known as common walls? Are your walls or your neighbor’s walls encroaching?

As a property owner, it’s important for you to establish the ownership of the walls surrounding your property. The best way to do this is to have a land survey. In Hawaii, many homes are decades old and as time passes, memories fade and property ownership changes. I have sold many homes where owners are unclear about the ownership of the walls surrounding their property. Who is responsible for the repair and maintenance of the walls? If the wall is destroyed, can it be rebuilt? Are there liability issues?

Order a Land Survey

When you list your property for sale, I recommend you order a survey upfront and early on. A land survey will reflect the perimeter improvements along your boundary lines. It will also delineate any improvements that may be encroaching into neighboring properties or into your property. A survey is a good start in establishing ownership of walls.

But, a surveyor does not always have the data to support ownership. For example, if there is a wall that straddles the boundaries of two adjoining properties, how do you know who it belongs to? Believe it or not, owners often don’t know. Walls are often pre-existing at the time of purchase. There aren’t always permits on file. And, memories fade. Absent direct knowledge, permits, and proof of ownership, it may come down to an educated guess.

Work with Your Neighbors

It also comes down to neighbors identifying issues and working through problems. Goodwill goes a long way in resolving encroachment and wall issues.

I recently sold a property with a wall that zig-zagged across a boundary line. Neither neighbor claimed ownership of the wall. Both bought their homes years ago and the walls were already erected at the time of their purchase. Fortunately, the neighbors were amicable and the wall never presented an issue. However, the new buyer wanted assurances. Who owned the wall? Who was ultimately responsible for maintenance and repair? Without proper agreements in place, would the buyer be assuming liability? All of these questions are understandable. Reasonable.

What’s the Solution?

In a situation like the one above, a simple common wall agreement makes the most sense. A common wall agreement covers things like maintenance, repair, destruction, and liability. The cost of an agreement (approximately $300 to $400) is worth the protection it provides.

Of course, you may have a situation where a wall isn’t shared and doesn’t belong to you, but it’s encroaching on your property. In Hawaii, the law allows for a six-inch tolerance or de minimus. Fortunately, if the encroachment is considered minor (six inches or less), it’s usually a non-issue.

But, what if you have an encroachment issue over the six-inch tolerance? You may want to enter into an encroachment agreement with your neighbor. The agreement will outline responsibilities and it will ensure that if the wall is ever removed or destroyed, the owner of the wall may rebuild, but will not be allowed to encroach again. You will want to seek the advice of an attorney before entering into an encroachment agreement as there are both pros and cons to consider.

Be Proactive

Walls around your property can present problems. So, be proactive. Get a survey and establish ownership. Take responsibility for your walls and work with your neighbors to resolve issues. Be sure to disclose existing issues to prospective buyers and draw up agreements as deemed necessary.

If I can give any advice at all, it is to maintain good relations with your neighbors. Over the years, I have sold many properties with wall ownership issues and encroachment issues. But, when neighbors respect one another and are on good terms, we are typically able to work through the issues and come up with win/win solutions. So, in summary, determine who owns the walls around your property, address any common wall and encroachment issues, and more importantly, be a good neighbor!

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Ray Sheldon

March 10, 2021

What if both neighbors are encroaching on either side, can you do a land exchange, other than a encroachment agreement to have a clear title.

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