When selling my house, the survey discovered that my inspected and approved pool encroaches on a con


Question: I am selling my home in Berrien County, Michigan, and an issue was raised in the survey because the concrete around my pool extends across my lot line into a "conservation area" that is the responsibility of the city. The area is wide (60+ feet) and I encroach for any area of about 75-100 square feet MAX. It does not inhibit any water flow/drainage. I followed proper inspection procedures but the city admits they didn't ask for the appropriate dimensions from the lot line and they likely should have requested a survey. The layout of my pool was originally submitted well within lot lines but it had to be changed due to a grade issue so when the design was modified I ended up encroaching over the line. It is a new sub and most neighbors have also encroached. The original plot plan identified the need for a silt fence at the lot line but this was placed far from the lot line and all the builders cleared to this fence (clearing in the "conservation area" that was not to be touched). The initial decision by the city was to require me to shorten the concrete and move fence / wall. It may cause my buyer to void the deal. Do I have any legal course? I am escalating it with the city but all they say is I am responsible for knowing my lot lines. They have admitted fault in some area but at this point do not appear like they will grant the variance. I believe the builder / developer was wrong in clearing the lot and the city was wrong in approving my inspections. It will now require significant cost to change the site and I may lose a buyer at an extreme cost to me because my new home will be finished soon. They say they can't grant an exception because everyone will want one then. Any advice??

Answer: Truly you are in a difficult situation. First, your plans were approved and inspections approved the actual construction. With time you may be able to get the local government to move on the issue. However, if it takes time you will lose your buyer. You need to analyze if economically you are better off agreeing to make the changes and save the sale, or if you are better off having the deal end and work to get the government to change its position. However, for most approvals like this, in Michigan the local governments have what is called Governmental Immunity for their ministerial acts. That means that you cannot sue them for damages. You could sue for an order to force their recognition of the approved construction, but that will take a long time. That is why I say your first decision is an unpleasant economic decision.

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