Encroachment by Neighbor's Driveway

[SuperiorMichigan]

My question involves real estate located in the State of: Michigan

Hello forum, reader for a while just no reason to get involved....yet. I have come to a crossroads with a neighbor of mine, keep in mind all is civil and friendly thus far. I own a house and property in a subdivision association (condo association).


I recently had my property surveyed by a local company who is very much recommended and has been around for 30+years. Cut to the chase, he staked my corners and a few points down the side lines. Reason being for all of this is I am having a fence installed (not the problem) of course it falls within respect to code of the bylaws of our association. Well turns out, my property line goes very close to my neighbors house 4 of 5 feet, and actually runs through her driveway towards the end of it. After I had it surveyed she said that there is no way it's correct. I went to city planning and they said it was in fact 100% correct and they pulled up aerial shots of the subdivision with lot lines superimposed on it. Clearly my property lines run exactly where the surveyor marked as well as said they were.


My neighbor recently went to the city planners to find out for herself what was going on and they told her that my deed represented exactly what I had surveyed and what hers would show if she had hers surveyed. She also found out the builder of her property built her house on her property according to MY LOT LINES and MY LOT NUMBER. I think this is a result of her putting a down payment on my lot initially and digging for a full basement only to find some water deep below the ground. So she got her deposit back and ended up buying the next lot down (where her current house is situated). So what happened I think is that they still used my lot plans to build her home but only on the lot next door (smaller lot). This is what she told me happened.


So anyways she is talking to me (nice lady) about "digging deeper" into the issue and this and that. Adverse time limits in Michigan is 15 years and is not an issue. Our homes were built early 2000's. Every lot parcel is straight lines and easy to navigate. She is expecting that somehow she is going to be able to gain a few extra feet of property frontage because her builders were in error. My fence is going up this week in accordance to city laws as well as my association by laws.


Today she told me she will be getting that extra 5 or 6 feet of property back and I may have to move my fence in the future. I told her fine, I did all I could (survey, city hall, original association maps) all showing I OWN exactly what the surveyor mapped out. Does anybody think that through some loop hole she could take my property that I have been paying taxes on for the past 8 years? Someone please confirm with me that her issue may be with her builder and has nothing to do with my property or my lines? Ask questions I will answer them to help someone fully understand the issue. New to this forum not online forums, thank you in advance for all your opinions if any

"Stanley"

[jk]

In Michigan, there is also a claim of land due to acquiescence as well as the adverse possession. It too requires 15 years to ripen so it would not be an issue either.

So, now you come to the drive encroaching on your lot. If you are willing to allow it to stay, you need to clearly set it down in writing that your allowance of the encroachment is permissive and can be revoked at will.

the only question is: how much is each party willing to spend to argue the issue? Lot line disputes can get quite pricey if taken to court. Yours is fairly simple so it shouldn't be too bad but it still costs money to defend a claim.

[SuperiorMichigan]

Thank you for the prompt response. She has been very nice about removing her gardens from my property thus far. I am just curious what grounds one could have to move property lines. Im financially stable enough to take it to court. It seems like a black and white issue.

What she claims is that when she built her gardens (about a year before my house was built) she saw lathe that supposedly showed the lot boundries. So since then (10-11 years) we just assumed those were boundries. Fast forward to now i get a survey and want to build a fence around my backyard.... I gave her permission to maintain her gardens in the areas that Im not putting my fence. I will address that issue later with her. Right now i just need to get the reassurance that whats mine is mine. Does she have a leg to stand on that goes against everything i have done/showed which includes survey,deed and the city that backs my property claim up?

[Newtons_Apple]

The assumption that the lathe was the boundary by both landowners is an almost classic case of acquiescence, a doctrine already mentioned by JK. But, as JK also mentioned, the statutory period (15 years) has not yet been reached.

So your neighbor appears to have no grounds to move the property line, unless you give her grounds. It's each landowners responsibility to know for certain where their boundary is; that knowledge typically comes in the form of a boundary survey.

You have fulfilled a part of your due diligence by retaining a surveyor, just in time as well, since your neighbor appears to be 11 of 15 years into having a valid claim. But merely knowing where the line is isn't always enough; you still have some steps to take.

As JK suggested, either get her to sign a certified letter granting her permission to use the portion of the drive that is on your land, or retain an attorney and begin the process of ejecting her from your property. This is assuming you are willing to allow the driveway to remain. Her reaction to your letter should be a clear indicator of her intentions. If she balks, begin ejecting. If she signs, happy days.

I'm not saying you should be a jerk, but it is your duty as a landowner to defend your land. If I were her, and you had not resolved the problem one way or another, I would file a suit to claim a portion of the land at the 15 year mark.

[LandSurveyor]

I think the neighbor is still mortified to find that she has unwittingly encroached. It's taking a bit of time for it to sink in. She has perhaps discussed the situation with her friends and relatives, as people do, and has received some free legal advice worth less than she has paid for it.

I think that might explain her assertion that she thinks the fence, which the OP intends to install promptly, will have to be moved. There is no other explanation as there is no legal reason seen here which would move it.

I agree with the previous posters that the OP has taken all of the steps which would be expected of a prudent landowner.

Once the fence is in, the deed is done and the neighbor will have to accept it or take action. It doesn't cost much to get an attorney to write a letter, but I would be surprised to even see that. Without the availability of adverse possession or acquiescence, the only approach left is to attack the survey. I have known many Michigan surveyors and have attended their conventions over the years, I find them to be a highly qualified, professional, and well educated group. And that is from an Ohioan, so it's not faint praise.

[SuperiorMichigan]

I appreciate all the responses as it has proved to be the reassurance that i needed to rest easy about the matter. Landsurveyer you pretty much wrote verbatim what i was thinking in regards to her just all of a sudden getting bombarded with this. The gentleman that marked my property comes highly recommended by others as well as the city where I live.

This letter that acknowledges my property and if she uses it must adhere to my way or the highway..... So far its been an easy debacle to deal with, I'd hate to have tarnished that due to certified mail from my lawyer. Is there any other means to aknowledge it? Perhaps a template letter online that i can just have her sign. Little more personal. I mean I'm all about acquiring whats rightfully mine. I just dont want to slap her in the face if its not necessary.

The portion of her driveway that i own is literally about a square foot. To be exact its the roadside front corner of the "apron" part. Its nothing really. I think its called an apron.. The part that wings out about a foot like a triangle.

In addition, a small island garden sits butted up against the driveway (3x6 oval) in this oval is her mailbox and all this other nonsense. All these gardens are now mine (on paper). Can her mailbox sit on my property legally? Or can I let it slide and let her keep it there if I say its alright?


Again thank you for all your thoughts/opinion/"expertise"

[jk]

be careful about raising hell about anything within the road ROW. Items such as a mailbox are not generally considered to be illegal encroachments but allowed usage of the road ROW. The drive could be considered the same.


as to the letter. It does not have to be confrontational> She doesn't even have to sign it although that would be a great idea if she will. It would avoid any argument as to whether you did give her notice or not.

Just state that her drive and anything else that encroaches on your land (that you are willing to allow to stay) are there by permission which is revocable at your discretion.

that is all it takes to prevent a claim of adverse possession or acquiescence.

[SuperiorMichigan]

Thanks for the heads up on the letter, that makes more sense to me. Mailbox is not an issue and it sits not within the ROW almost certain its a few inches back, not 100% certain though. Just figured to ask because i know how anal the postmasters can get about protocol. I will keep you guys posted..unless the thread gets closed threads like this are very useful to others. I real through about 15 pages of threads on fences here haha. Very interesting, and one can learn alot from doing a bit rubber necking around this site.

[eapls2708]

Assuming that your surveyor properly marked the correct lines, and I have no reason to think that the survey was performed incorrectly, then your neighbor has an issue with her builder and possibly with her title insurance carrier, depending upon what her policy covers and how it's written.

It seems that up until the time of your survey, you had each been living by the belief that the line between you was in some location that accommodated all of her improvements. You might consider selling her a strip of your land so that her drive, gardens, and whatever else would be on her property. Hopefully for her, she could get reimbursed for it by either her title insurer or her builder. The only potential snag to that is that the builder might be able to weasel out of his liability if this has gone beyond the statute of limitations for claims resulting from negligence. I can't recall if MI has a strict statute of limitations or if that clock begins ticking when the negligence was discovered or should have been discovered.

Anyway, unless you have your heart set on some particular use of that newfound additional property, that since you've each been living peacably under a different belief, you might be able to adjust your boundaries (with appropriate compensation to you, of course) to a location roughly where you previously believed the line to be. This solution would avoid your neighbor having to remove or modify improvements, would avoid you having the encumbrances of another's use of your property for the existence of their improvements (even if permissive), avoids potential future confrontation over real or claimed property rights between you and your neighbor or successors in interest, avoids the potential for costly litigation, hopefully leaves each of you with a lot configuration you can each find acceptable at a price you each feel is fair, and most importantly preserves the peaceful and neighborly relationship.

[LandSurveyor]

As a surveyor I have to say up front that I am not an advocate of trying to drag unwilling adjoiners into a boundary adjustment. If people want to know and defend their boundaries, I am a part of a profession which is put in place to be at their service. I never insert myself to be a mediator in a boundary dispute unless expressly asked by both parties to the dispute. If so asked, I try to bring my forty years of experience to the table. Otherwise, it is none of my business but the business of the adjoiners to decide on any further action. If called into court to testify, I will state my opinion based on my finding of facts in the case.

The OP has expressed no such desire and I think this is the best advice so far given if the OP wants to be a "nice guy":

Just state that her drive and anything else that encroaches on your land (that you are willing to allow to stay) are there by permission which is revocable at your discretion.

That's all that is required for him to protect his property. Since it's his he needs no further excuse or reason to assert his ownership.