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Neighbor does not want to deal with encroachment

Posted by blueberry-2007 (My Page) on
Tue, Oct 9, 07 at 2:05

Hello,

My neighbor's house and car port are at least 12 feet over my property line. We did not know it. According to what I understand, his home and carport are "legally nonconforming" because both have been there a very long time. He can't be forced to move either.

I want to resolve the boundary issues by deeding property to him. I am paying taxes on land he uses and I am concerned about liability and selling my property. I offered to deed the property to him for the cost of the survey and the cost of the atty. - $ 1100.00. This is over 1600 square feet. He knows I want the boundary lines straightened. He does not care. He is not moving on getting the paperwork so that my attorney can move forward. We need his last deed of record. He wants the land really cheap, like probably $ 500.00. I am opposed to loosing this land. On the other hand, I never knew I had it until I tried to sell my property and a survey was done. I just want my costs covered as I am the one loosing the land and doing all the work to get this cleaned up. Can I force this issue with my neighbor short of increasing expenses with more attorny costs? I have told him that if I have to have to use an attorney more, the costs go up.


Follow-Up Postings:

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RE: Neighbor does not want to deal with encroachment

What you need to do IS get your lawyer involved - it's not something you should be trying to work out alone. You are very likely to either shortchange yourself through ignorance of various laws, by-laws, etc., and thereby be short if you come to sell later on, or else make an enemy of a neighbor unnecessarily (again because of either not knowing possible loopholes in the laws, or asserting your 'rights' when you shouldn't.


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RE: Neighbor does not want to deal with encroachment

If you sell your property, you can have the deed written to include only the area you choose. Be sure that the buyer is fully informed. The area you do not wish to retain will eventually be seized by some government entity for non-payment of property taxes. Then the neighbor will REALLY wish they had accepted your offer.


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RE: Neighbor does not want to deal with encroachment

"According to what I understand, his home and carport are "legally nonconforming" because both have been there a very long time. He can't be forced to move either."

Legally nonconforming has nothing to do with adverse possession. Has the time for adverse possession lapsed? Have the other elements of adverse possession been met? I wouldn't be so quick to assume you can't get this land back.


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RE: Neighbor does not want to deal with encroachment

Legally nonconforming probably relates to the date of the structure vs. the date that the bylaws were established requiring certain set-back requirements for new structures.

"He can't be forced to move" You want to speak with a real estate attorney regarding this. Alternatively, bus driver has a good idea, but you are gonna end up paying for it.

Forcing the issue is gonna cost money.

Are you somehow prevented from selling because of the encroachment?


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RE: Neighbor does not want to deal with encroachment

I have never heard of legally non conforming allowing a neighbor to have building on your property. It normally applies to buidings that don't meet current zoning regs. It's your property. At the very least you should be charging him rent.


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RE: Neighbor does not want to deal with encroachment

I would get a lawyer that specializes in property law to look at the situation.

I agree with joed on above.


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RE: Neighbor does not want to deal with encroachment

You obtained a survey prior to even knowing that his garage was on your property. So why should your neighbor pay for your survey when it was done for reasons unrelated to his garage?

If you want a copy of his deed, go down to your town/city hall and obtain a copy of it from the land records in the town clerk's office. You don't need to obtain a copy from him. I don't see why you need to even look at it in order to convey the property to him.

Although the poster used the wrong phrase, "legally nonconforming", I think it is clear the poster is trying to convey that the time has passed and the neighbor has acquired the land under adverse possession.

You can not simply deed the property to a buyer excluding this section.


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RE: Neighbor does not want to deal with encroachment

premier, i think the OP meant the price of the survey to mark the land being deeded over. in other words, charge him ONLY the expenses to sell him that section of land, survey and the deed fee.

in my area you can do it without a survey, jsut have the paperwork drawn up to say you convey title to all of the west 20ft of lot 10 to so and so.


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RE: Neighbor does not want to deal with encroachment

Premier wrote: "You can not simply deed the property to a buyer excluding this section." It certainly can be done in NC No doubt about it. Premier, please tell us why and where it is not permissible.


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RE: Neighbor does not want to deal with encroachment

Adverse possession is not automatic. The adverse possesser needs to make the legal paperwork happen, and that costs money. From what the OP has written, there does not appear to be adverse possession, as if there was, the neighbor wouldn't need to couter offer the OP with $500 to take title - he'd already have title.


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RE: Neighbor does not want to deal with encroachment

"Adverse possession is not automatic." Case law differs with this statement. An old case, Konop v. Knopel, 167 Neb 318, 92 N.W. 2d 714.


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RE: deal with encroachment

Take time to read this.

Here is a link that might be useful: Another case


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RE: Neighbor does not want to deal with encroachment

"If you sell your property, you can have the deed written to include only the area you choose. Be sure that the buyer is fully informed. The area you do not wish to retain will eventually be seized by some government entity for non-payment of property taxes. Then the neighbor will REALLY wish they had accepted your offer."

bus driver...you suggested that the property be conveyed excluding the part of the property that the garage was built on and that eventually the town would seize the property for back taxes.

You can't assume that you can convey only part of the property. What if the part you wish to convey is less than the minimum required lot size? Even if you could convey that portion, the remainder of the land, the part with the garage on it, would remain in your name and you would be responsible for the taxes and the town would foreclose on you. Not a good suggestion to suggest to the OP to let the town initiate a foreclosure action against her. Plus the remainder of the property would not be sufficient in size for an approved building lot so the conveyance would not be proper and would be invalid. You would have to go to zoning to obtain zoning approval to subdivide the property for sale. You can't just write up a different legal description on a warranty deed. Don't you think the buyer's atty and the title search company might have a problem with this?
Anyways, who would want to purchase this house with this problem?

Of course there are specific requirements that must be met in order to acquire land by adverse possession. But they do not include generating any paperwork as suggested above. Based on the info the OP posted that the garage has been there for so long and can not legally be required to have the garage taken down, the OP is telling you that the neighbor has acquired the land already by adverse possession and has met the requirements. The OP is not trying to fight to get the land back. The OP has consulted a lawyer and it has been determined it is to late. The OP merely wants to have this section of land removed from her property description and the requirement to pay taxes on it.


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RE: Neighbor does not want to deal with encroachment

the OP can deed that part over to the other person. my stepdad bought a strip roughly 6 ft wide by 90 ft long from the neighbor at his second house. he paid 100.00 for it, and that included the filing fee.

adverse possession varies by locale, around here if you take care of it for 3-5 years THINKING it is yours, then it becomes yours.

to the OP, i would look at the the original deed you got when you purchased. if an easment was granted by the previoous owner, then you must honor the terms of it. this means you pay the taxes for it but do nto get to enjoy the use of that section of property. and unless your taxes are in the 10's of thousands a year, it ain't much. my taxes on a2 acre lot i had were 98.00 a year. if i gave up a small strip of land to a neighbor, it would maybe lower it by a dollar!


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RE: Neighbor does not want to deal with encroachment

In order to assume property by adverse possession you have to occupy the land for a specific period of time. In the state of Ohio its 21 years but some states it may be as little as 7yrs.

The only way to be sure would be to contact an attorney in your area.


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RE: Neighbor does not want to deal with encroachment

A resolution can be forced on the other party. Have your attorney file suit in the matter. However, the court-ordered resolution may be less satisfactory to one or both parties than what they can negotiate among themselves. And seeking resolution in the courts is the high-dollar solution. But it is available even if some of the parties are reluctant.


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RE: Neighbor does not want to deal with encroachment

The guy has no incentive to pay anything. He is using the property. It's not costing him any money. No one is threatening him with any action. Why should he fork over any money to get what he already has?


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RE: Neighbor does not want to deal with encroachment

If it were me, and this guy was dragging his heels on a very generous offer & thus exposing me to potential liability (as well as causing problems on any potential sale), I'd start to play hardball. Talk to an experienced real estate lawyer, and see if you can start proceedings to obtain court authorization to tear down the portion of his house and carport which are on your property.

That'll get his attention.

My guess is he is trying to stall so that in the future by operation of law it becomes his property automatically, since you knew about the problem and did not fix it. Plus, in the meantime, you're paying his property tax and accepting all liability for that portion of the property. It's a great deal for him!


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RE: Neighbor does not want to deal with encroachment

I agree with fredwolf. The guy with the encroaching buildings needs to be forced into agreeing to some sort of arrangement. Since he's so far done nothing despite more than reasonable offers, stronger actions are called for.

I live in Baltimore, MD and ironically have the reverse situation. My north fence (at least 50 feet) is in my neighbor's yard--just 2 feet, but the yards here are only 32 feet wide. I wasn't told this when I bought the house, and normally a full-fledged survey isn't done here. I found out because my neighbor mentioned it. I measured, found the discrepancy (and the boundary marker), and promptly offered to share equally the cost of moving the fence to avoid any future problems. She refused.

I do know that it isn't my responsibility to move the fence--in Baltimore, it's hers. And I don't want to spend a lot of money just for her benefit, since she has known about this situation for years and could have talked with the previous owner (I've only had the house 18 months).

However, I'm concerned that she might sell the house and that the new owner would take down the fence, pull up my shrubs, and build something hideous. My question: given that the fence has been there for around 9 years now, and she has known about it and done nothing all that time, is that land mine? How would I research this question? Could I formally assume title to this strip of land, which I care for?

Thanks! I'm glad I found this discussion.


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RE: Neighbor does not want to deal with encroachment

I know different states are different. In IL, you have to occupy for 20 years. Unless it is under "quiet of title" (not exactly understanding that term) though maybe some else can elaborate if this pertains to your case in baltimore.


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RE: Neighbor does not want to deal with encroachment

echalmers, in your case I'd just build a new fence I like, done properly, just inside my property line, and let her worry about the maintenance / removal of the old one


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RE: Neighbor does not want to deal with encroachment

I like fredwolf's answer! Build yoursef a fence, she keeps the one on her property.
Blueberry, you really need a real estate attorney, fast!
Kathy G in MI


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RE: Neighbor does not want to deal with encroachment

Actually I did think of just building a fence and leaving her to deal with the other. But probably that is the way it would stay, and it would look really ugly, especially since my west- and east-facing fences had to be built out to the current fence, because that's where the posts were.

Probably I'll just let the issue ride, plant inexpensive shrubs, and hope for the best. If I decide to move, though, I may have to replace the fence. If I had known about it, I wouldn't have bought the house without a promise that the owner would move the fence.

Thanks.


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RE: Neighbor does not want to deal with encroachment

The OP needs a very good RE attorney.
Not all lots can be divided.
Some are just plain restricted, others may already be at minimum lot size. The loss of some area would create a non-conforming condition. That might require q variance to even divide the property.

You need to know EXACTLY what he rules are for adverse possession in your location.
The basic are almost always possession that is open & hostile for some period of time.
Some periods are 30 years, some as short as 5-7 years.
Some places require taxes to have been paid for the land in question.

There may even be a recorded easement that allows the house to remain, and thus denies the 'hostile' requirement.

Lawyer up.


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