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Encroachment…Defense…5 Yard Penalty!

October 2nd, 2011 Comments off

In the 3rd Millennium, prehistoric man picked up his hunting and gathering tools and moved to Mesopotamia to live with his fellow former cavemen. Thus, began civilization. The dawn of the next day witnessed the first dispute between adjacent landowners. It probably started over something minor. Perhaps Uruku’s camel too frequently fertilized Ebarbar’s front lawn. An argument ensued over picayune matters and quickly escalated to a full-blown feud until Ebarbar finally settled the matter by burying the hatchet . . . in Uruku’s skull.

After Hammurabi codified the laws, the hatchet solution became passé. So was spawned the first lawyer. Five thousand years later people still fight with their neighbors and lawyers are still busy.

Not-so-neighborly disputes arise over boundary lines, shared driveways, noise complaints and innumerable other actual or perceived injuries. To solve these problems, I advise my clients of their five options:

You can sue the bastards, but civil litigation is costly.

You can do like Ebarbar did, but criminal defense attorneys are also expensive and felony murder can get you a long prison term.

You can try to work it out.

You can ignore it.

You can move.

If the offense is minor, I always advise the client to choose option three and fallback on option four. No matter how many times your neighbor puts his trash cans on your side of the driveway, it’s not worth it to sue him. If you do, it will cost you money, time and aggravation. And it won’t solve the problem. You’ll find yourself mired in the quagmire of trench warfare which will make you paranoid and anxious. You’ll never again feel that you are at “home sweet home.”

Some offenses cannot be ignored or excused. If your neighbor paves over your lawn to make a larger driveway for his boat and RV, his encroachment impairs the value of your land and clouds your title – perhaps making it unmarketable. What can you do in such a case?

First, you should research the title to your property to see who owns the land in question. Check for easements, which are recorded agreements permitting adjacent property owners to use or cross your land. It may be that a prior owner gave your neighbor the right to place his driveway next to your geraniums.

It is essential to know your property line. Where does your land end and his begin? Only a licensed land surveyor can make that determination. It’s expensive to obtain a new survey. But if your surveyor can locate an existing survey, he can compare it with the “meets and bounds” description in your deed. He will measure your property by reference to fixed points such as intersections. The surveyor researches available property records and compares adjoining properties. He then measures distances with references to compass points to identify your property lines. Ask the surveyor to “stake the property” so that you can see for yourself and show your neighbor.

If your inspection reveals that your neighbor’s driveway is less that one foot inside your property line, a title company will insure the property as such deviations are minor. However, if own a small lot, a one foot encroachment can be significant regardless that your ownership is insured. Then, it’s your call whether to make an issue of it.

If the surveyor confirms that your neighbor’s driveway extends more than one foot onto your land you must take action to remedy the problem and reclaim the land. Even if you don’t mind the intrusion, it may prevent you from selling the house if your buyer can’t get title insurance or his mortgage lender determines that the value of the “lost” property severely impairs their investment. In the worst case scenario, an obvious, obtrusive and offensive use of your land for more than ten years will allow your neighbor to take the property by “adverse possession.”

What then can you do? Machiavelli once said, “There is no avoiding war; it can only be postponed to the advantage of others.” But he didn’t have to pay a lawyer or live next door to his mortal enemy. Decide if the encroachment really bothers you or significantly impairs your use of the property. If not, one solution is to negotiate and sign a Boundary Line Agreement, by which you may permit your neighbor to use the land with the understanding that he doesn’t own it. It’s a good compromise. He keeps his driveway and avoids the cost and inconvenience of relocating it. You keep good title to the property and avoid the cost of litigation. You both avoid conflict which is essential to your sanity and peace of mind. Remember. You live here. This is “home” where you should be safe and happy.

The Boundary Line Agreement can be drafted so that it will expire upon a future event, such as when your neighbor sells the property or needs to repave the driveway. That provides a permanent but bloodless solution.

If you’ve tried unsuccessfully to resolve the problem amicably, it will be easier to justify spending the time and money to sue him.

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