Right of Way Encroachment by Neighbor

[ohio15]

My question involves real estate located in the State of: Ohio
The township has right of way to 10 feet of land (front yard) from the curb, on a township road.
Over 20 years ago PRIOR owners of 2 neighboring homes on this street mutually agreed to allow a lamp-post and mailbox of one neighbor to be planted in the right of way of an adjoining neighbor's yard in writing as an unrecorded permit.
A new owner who moved into one of these homes recently now claims his right to keep the objects in the right of way of his neighbor, even though he has been asked to move these. (These posts have been made into decoration posts for bright wrappings etc.)
What remedy exists? Does the owner of the home who is being burdened by these actions, have a right to remove the posts? decorations? and prevent trespass?

[LandSurveyor]

It's possibly going to depend on what is in the " unrecorded permit". If it was a simple grant of permission, that can be withdrawn.

What, exactly, does the permit say?

[ohio15]

This "unrecorded permit" was between the prior owners of the 2 adjoining properties and given to me when I bought the house. I made nothing of it at that time. It states "We acknowledge that our mailbox and lamp-post at the side of our drive encroaches on your property. This condition, based on your permission, still exists. In the event our property is listed for sale, this encroachment will be listed as a part of the owners disclosure document".
Their home was later sold by auction and no disclosure was apparently made to the new owner. A copy of this was furnished to the neighbor, who has ignored this.
Thank you in advance for your insight into this.

[LandSurveyor]

This condition, based on your permission, still exists.

If that is not permissive use, what is? Sounds like the previous owner knew just what to do to prevent unwanted rights from maturing.

If the auction was a foreclosure, tax sale, etc. the new owner may have purchased it "as is". In that situation there are a variety of things potentially unknown, including unrecorded revocable license agreements such as the "permit". I am not an attorney, but what I would do in this situation would be to send a letter, certified with signature receipt, revoking the permissive use and giving the neighbor a reasonable time period (ten days-two weeks) to remove his the items (list them) from your property. Otherwise, you will remove them at your convenience after that time and return them to his property. I would also go to the expense of having my attorney write and send the letter.

[ohio15]

Thank you. Is the neighbor legally "trespassing" to place objects/flags/wrappers etc. on these posts? Am I within my right to take these off? Is the underlying land in ROW (10 feet from the curb) owned by the township or me. The pin marking the property line was found 10 feet from the curb.

[LandSurveyor]

Is the underlying land in ROW (10 feet from the curb) owned by the township or me.

I would start by asking the county engineer if the ROW is owned by the township in fee simple or whether it is an easement. If the road has been there for a while, it's likely not owned outright. Information from the county auditor and or GIS is not going to be definitive as to status of the ROW.

Surveyors in Ohio will commonly place pins on the right of way line as the ownership rights, which might actually run to the centerline of the ROW, are extremely limited for the underlying owner. In Ohio, townships have quite a bit of regulatory power over township ROW, but, depending on the township, it may range from nearly complete neglect to requiring a permit for anything, including mail boxes.

[ohio15]

OK Thanks. I have asked the township zoning department so far without clear answer and also that it is not in their power to have these moved/removed.

[ohio15]

ROW was apparently dedicated by the plat and held in trust for public use. What bearing if any does this have on my rights as a property owner re. the above?

[LandSurveyor]

It depends on what the plat creates- an easement for the ROW or a fee simple ownership right. It's possible, if you live in a small population county, that there may not be anyone in the county engineer's office who can give you a correct read on this. In that case get a local surveyor or member of the local bar association to read the dedication on the plat and give you an opinion. Once that is known, your question will be able to be answered. My guess is that an attorney was involved in advising your predecessor in title as to how to craft a permissive use document, and the attorney felt that the ROW was an easement, and not a fee simple ownership.

If the ROW was created as a fee simple ownership to the township, you have no rights left in the ROW. If it was created by easement, you have whatever rights are left which do not interfere with public use as highway.