Dear PoPville – What’s the best approach for reclaiming my property?

Photo by PoPville flickr user BrennaLM

Dear PoPville,

I bought a row house a little more than two years ago. I realized last summer that one of my neighbors had long-ago seemingly invaded/encroached upon and built on a one-foot-wide strip of my yard, from my house all the way to the alley at the back-end of my property. I noticed it because I was building a deck and wanted the deck to run across the full width of my house, then realized that the fence separating our yards runs into my house about a foot in from the edge of my house. On my neighbor’s side, there’s a poured concrete walkway and the legs of a large carport on what seems to be my property. This neighbor is elderly and very sweet, so I didn’t want to make a big deal about it.

However, I recently learned that she’s selling the house and will be living full-time in another house she owns out of town. She’s been at her new home since February and I have no way to get in touch with her to discuss this matter. But I’m thinking that, with her house about to be sold, now’s the time to reclaim my property. Doing so will require removal of my neighbor’s carport, as well as removal of part of the concrete walkway.

What’s the best approach for reclaiming my property? Do I hire a surveyor first, to make sure what I believe is my property is, in fact, my property? Any recommendations for a surveyor? And what do I do after that? Should I make sure to get this done before my neighbor sells her house? I have no idea how to proceed. Thanks for any advice.

42 Comment

  • This is gonna be good…

  • Lawyer up, and then do whatever your lawyer says.

  • Start by sending a letter to the realtor and the current owner. They’ll be under obligation to disclose the buyers and banks. “It has come to my attention that the property you represent includes my land. When the survey is done to support the sale. When the bank loan is being done, I expect that you will disclose that fact.” Seek some free legal advice too, there are probably some words to make it sound even more official. I think the bank won’t finance if it knows there are issues with the boundary?? Good luck. (funny i recently let me neighbor build a fence a bit on my land, but it’s only 6-8 inches or so. We had to do it that way to get around a shared tree. Will likely cause me a big headache down the road during survey, but I am not too worried.

    • ah

      Your neighbor’s fence shouldn’t be an issue. It’s your fence if it’s on your land.

      If you want to be safe you can send them a letter confirming that you gave permission to put the fence on your land in order to avoid the tree. Once you’ve given permission there’s no claim for adverse possession.

  • Tackle this on multiple front. Say something to her, her realtor, talk to DCRA, the realtor that sold you your house, and a lawyer specializing in real estate.

  • ah

    How long has it been this way? In DC, 15 years is the time for adverse possession, so if they meet the other requirements (they may have), you could have a fight on your hands.

    On surveyors, there’s only a few that are permitted in DC. We used Snider, and they were fine.

    If she is selling, you may be in luck. She won’t want this to be an issue during sale because what buyer wants to buy into a legal fight? But it’s going to be a big deal one way or the other.

    Three solutions: (1) Sell her the strip of land for its fair market value.
    (2) Insist that she have the carport reduced in size, with supports moved appropriately; (3) agree to rent your property to her for up to X years (transferable to the next owner), but at that point they have to remove the concrete and carport from your property.

    So, steps:
    1) Get a surveyor to confirm your views about the property line.
    2) Try to contact the neighbor–use certified mail if necessary.
    3) If initial contact doesn’t work, try again with a demand that she correct the situation within X days.
    4) If it goes up for sale, immediately contact the realtor to express your concerns.
    5) Have a lawyer file a lawsuit to have her remove the carport, etc.

    Keep in mind that if you reach step 5, adverse possession may become an issue (depends on facts). You could also remove the carport yourself, and seek to recover your costs for doing so, but that is risky if she in fact has a decent argument.

    BTW, how long does it take to notice that a fence runs 1 foot into your house, rather than at the meeting point with the next house?

    • I’m one of the few non-lawyers in this town, so would you mind explaining what “adverse possession” means?

      • ah

        Adverse possession is a legal doctrine sometimes described as “squatters’ rights”–i.e., if you’ve claimed possession to someone else’s land for a period of time you may be able to acquire title to it.

        Different states have different time periods for possession, as well as specificic requirements, although generally speaking one needs to show possession that is:

        “open and notorious” (i.e., it’s obvious you’re doing it)
        “exclusive” (i.e., you’re not sharing it with the owner)
        “hostile” (i.e., without permission)
        “continuous” (not just occasional occupation)
        for a certain period of time, typically 7-20 years, but varying from state to state.

        • “Open and notorious” – sounds like the current situation with the folk trying to take my friend’s boat!

  • In other words, don’t pay for a survey out of your own pocket, or hire a lawyer, make the representing real estate agent deal with it by notifying and drawing a line in the sand on what you will expect. The certified letter should achieve that. The transaction usually requires a survey for the bank. The imapcted neighbor shouldn’t be paying for that!

    • ah

      Surveys for loans/title insurance usually don’t stake the actual boundaries. They may note possible encroachments, but usually don’t establish the precise degree by which something encroaches.

      But, agreed, if you stir it up enough the title insurer won’t insure and buyers won’t want the headache.

      • I worked as a land surveyor in North Carolina during my youth and we always staked the boundaries. I can’t really see a reason not to–as a surveyor you have to give people SOMETHING for their $500.

        Surveyors WILL locate the pin and if they can’t find one (or any) they will place them for you by triangulating the corners from other known survey points in the area.

        In addition, part of what you pay for includes a licensed professional surveyor to compare the survey to the historic maps and plats. They WILL go down to City Hall and dig stuff up for you if it becomes necessary.

        At least that’s what you got in NC.

        Generally surveyors find this sort of thing interesting. Most surveys are very boring in comparison.

  • It’s lawyer time!

  • I agree that you need a lawyer right away. Also, to make it clear that you mean business, send the current owner and her real estate agent a cake from Heller’s and let them know that there are more where that one came from.

  • Why wasn’t this caught when you bought the your house?? Wasn’t a survey done then??

  • OP mentions that he noticed the incursion some time ago but didn’t press the issue because “this neighbor is elderly and very sweet, so I didn’t want to make a big deal about it.” That’s a nice gesture and it’s of course not picking unnecessary fights with good neighbors.

    However, as others have pointed out, “letting things slide” makes it possible that you will have an adverse possession claim on your hands and could lose the property.

    There is a way to resolve this, though. A simple letter to the neighbor that you are aware of the incursion but happy to let it continue for the time being will undercut an AP claim, since it eliminates the adverse/hostile element.

    Consulting a lawyer and having him/her draft this kind of letter, and bringing it over with a (non-moldy) cake or six-pack is the wise course. It protects your relationship now and your rights later.

  • Great posting – I am in the same situation and my neighbors are stellar and I don’t want to create havoc. Eventually, Grandma is going to pass away and the kids are going to sell the place, I don;’t look forward to the conversation but gotta have it. These comments from others are valuable.

  • SAME thing happened to me (I’m a lawyer too). We wound up not caring about the strip of land and sold it to the neighbor. But assuming you want the land, you should do this in my opinion:
    1. Go to your neighbor and explain that you want tto resolve it amicbly. Tell her you need her written acknowledgement that she does not own the land by adverse possession. If she does not do so, you should file a lawsuit – even in small claims court- and file it with the recordar of deeds. I would also tell the listing agent (whose name is on the for sale sign) that there is a dispute about the boundary and they should disclose that to the buyer, because you intend to sue the buyer. Thhey want to sell the property and are going to cooperate and agree they don’t own the property in order to avoid drama. Then when the new buyer comes in, you need to work it out, whether it means allowing their ongoing use (while agreeing it is with your permission, defeating adverse posession), or selling it to them. We made a lot of money selling a tiny strip of land, even at the city-appraised rate.

  • I know that one would have to get a permit to build these structures which encroach on your property. You could contact DCRA to see if they were built without a permit and DCRA may have the ability to go after them. I don’t have too much faith in the system, but you could try it before resorting to hiring a lawyer…

    • This. So many carports are built without permits. But DCRA is terrible about doing anything about it.

  • PDleftMtP

    What others said. “Long ago” is a potential problem. If they built stuff on your land 15 or more years ago, it’s likely their land now, and sending letters alone won’t make it happen. Even if it’s more recent, I wouldn’t bank on getting the structures removed – you might only get the value of the sliver of land. It’s possible that you might have a claim from when you bought the place (title insurance?), but I’m no real estate lawyer and don’t really know.

    You need to find out what the facts are about when this was done, and you probably need a lawyer.

  • If the “invasion/encroachment” of which you speak took place “long-ago” – as in before you bought your home, your neighbor did not invade/encroach upon your property, she encroached upon the property of the person you bought the home from. And if it happened long enough ago – more than 15 years under DC law – it may be her property now. You bought what the seller had the right to sell you. And if he or she had already forfeited any right to that 1 foot strip of land, it wasn’t part of what you purchased. Your best bet is to call a lawyer that specializes in property law before doing anything else. You shouldn’t go sending angry letters staking a claim to that strip of land until you are sure it’s actually yours. Given the litigious nature of our society, and the fact that every other person in DC is a lawyer, you could find yourself being sued by your neighbor for improperly interfering with her attempt to sell her property. Query why or how this wasn’t discovered when you were buying the property. Your only recourse may be to go after whoever missed this when the sale was being finalized.

  • if shaking down Grandma doesn’t work, discretely release rats into the home on the morning of the open house….then sit on your front porch in your undies….drunk

  • hmmm ….I believe there is a “shared boundary” law in DC – look at that first

  • Have a surveyor do a wall check which will verify the property boundaries. File a copy with DCRA Surveyors Office and send a copy by certified mail to the realtor handling the sale. Once disclosed, the realtor will have to address the issue, no need for you to try and hunt down the out of town neighbor, the realtor will now do that. Also include a nicely worded letter letting them know how you want this resolved (you catch more bees with honey…). They will not want to hold up the sale over this and will try to come to some sort of resolution. Good luck…

Comments are closed.