A Driveway, a Fence, and a Misspelled Deed
Hollis is buying Lot 12 from Vance and has a survey done before closing. The survey shows: (1) the neighbor Diaz's asphalt driveway crosses 8 feet onto Lot 12; Diaz's predecessor installed it in 1996 and it has been used, paved, and plowed openly and continuously every winter since, with Diaz maintaining it and Vance never objecting; (2) a chain-link fence Diaz built in 2019 sits 2 feet inside Lot 12; (3) a recorded 1978 utility easement runs 15 feet along the rear lot line; and (4) the 2005 deed into Vance misspells the grantee as 'Vann' and was never corrected. Hollis's lender requires clear title, and the title company plans to list the driveway, fence, and easement as Schedule B exceptions.
1. Analyze Diaz's driveway. Does Diaz have an enforceable right, and what can Hollis do about it?
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Duration is not the problem; the easement almost certainly exists.
A prescriptive easement requires use that is open, notorious, continuous, adverse (under claim of right, not by permission), and for the statutory period. Here the driveway has been visible, paved, used daily, and maintained since 1996 - roughly 28 years, well beyond South Carolina's prescriptive period. There is no suggestion of permission, so the use was adverse from the start.
Consequences for Hollis:
- Hollis takes title subject to the prescriptive easement whether or not it appears in the chain of title. A survey reveals it; the deed does not have to.
- It will be a Schedule B exception. That is not a defect the title company must cure for the lender; it is an encumbrance the buyer accepts.
- It cannot simply be ripped out. Options: (a) accept it and negotiate price for the loss of use; (b) negotiate a written easement agreement that defines the location, width, maintenance cost-sharing, and insurance, which converts a fuzzy prescriptive right into a documented one; (c) litigate quiet title to extinguish it - expensive and unlikely to succeed.
Advise: get the easement in writing with maintenance obligations rather than leaving it undefined.
2. What is the status of the 2-foot fence encroachment, and what practical remedies exist?
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The fence is a recent encroachment, not a matured right. It was built in 2019 - about 6 years ago - far short of the period needed for adverse possession (South Carolina uses 10 years with color of title and 20 years without), and Diaz has no deed or color of title to Lot 12.
So the fence is a trespass/encroachment that Hollis can demand be removed, and that a survey-based objection can force before closing.
Practical remedies:
- Require removal before closing - have Vance, as current owner, enforce against Diaz and get a written confirmation and a re-survey confirming the line is clear.
- Boundary line agreement - the parties agree in writing to the true line (the survey line), recorded so future buyers are on notice. Best if the parties want to avoid a fight.
- Quitclaim of the strip - Diaz deeds the 2 feet to the owner, which makes the boundary clean but leaves the fence off the new line; combine it with a relocation plan.
- Easement or license - allow the fence to remain with a recorded, time-limited license; less desirable for resale.
Never tell the buyer to 'just accept it' - the lender's survey exception will surface it, and the encroachment can become a boundary dispute at resale.
3. How do the misspelled grantee name and the utility easement affect marketable title, and what should happen before closing?
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Misspelled grantee name ('Vann' instead of 'Vance'): a deed is generally not void for a misnomer if the identity of the grantee can be established from the surrounding facts (the recording, possession, tax records, and the rest of the chain). But it is a title blemish that underwriters flag, and it will complicate the next sale if uncorrected.
Cure it with a corrective or confirmatory deed from the 2005 grantor (or the grantor's successors), or an affidavit of identity/scrivener's error supported by evidence, plus recording. The title company should also be asked in writing to insure over it.
1978 recorded utility easement: this is a valid, recorded interest. It does not make title unmarketable; it makes title encumbered. The buyer takes subject to it, so:
- It must be disclosed and shown as a Schedule B exception.
- Hollis must not build a structure, pool, or fence on the 15-foot strip.
- Verify who holds it and whether any active facilities exist; abandoned easements of record still burden the plan and the appraisal.
Before closing: obtain the corrective deed, get the survey exceptions explained to Hollis in writing, and confirm the lender's conditions in writing - not verbally at the closing table.