How to Resolve Encroachment

[RCR]

I’m looking for some advice specific to a property encroachment in New York State.

I purchased my village property in December 2005. The previous owner purchased the property in March 2004 from a long time owner. Neither had ever had the property surveyed. Shortly after I was under contract to purchase the property, the adjacent property owner alerted us to the encroachment.

The lot is rectangular in shape, although the southern boundary is on a slight angle. As much as 9.5 feet of the southern edge of my driveway, garage, and yard behind the garage encroaches. (Long story, but I purchased the property anyway.)

The neighbor purchased his property in April 2005, also from a long time owner, and discovered the encroachment when he had his property surveyed. He purchased the property anyway, and did not bring the issue up with the previous owner of my property until after my purchase contract was in place. The two did not get along, so we were unable to resolve the issue prior to the sale.

Back in 2007 or 2008, I approached my neighbor about resolving the issue, and he agreed to contact his mortgage company to see if they would work with us. Later he mentioned to me that he was having trouble reaching a real person at the company, but I never got any real details and he dropped the subject. We have a respectful and polite relationship, but are not close. I get the impression from him that he doesn’t want to put much effort into resolving this, and I think pushing the issue may ruin the civil relationship, so I haven’t gone any further.

Now, I am starting to think about selling the property. I know it will be very difficult unless this is resolved, so I am trying to learn about my legal options in case I’m not able to work things out with my neighbor.

The offending garage was built in 1968. Supposedly it was built on top of the foundation of a barn that burned down in 1968, which dated back to the 1870s (same as the house). The driveway is immediately in front of the garage, and goes straight out to the road.

Also of concern to me is the yard behind the garage. This area has been kept as part of the lawn since before I owned the property, and there is a hedgerow between this section of lawn and the neighbor. I don’t know how to tell how long this area has been part of the yard, but the hedgerow contans some mature trees and is clearly being used to divide the properties. I now have a fence and shed there. My neighbor has not objected in any way to my use of the driveway, garage, or yard area.

Can anyone offer me some advice on where to start? Thanks, I really appreciate it!

[LandSurveyor]

There may be a variety of legal options available to you.

As the garage, hedges, and trees were in place as early as 1968, it appears that the adjoiners may have established a boundary between themselves. If their actions of possessing and maintaining what they thought was their property to certain lines (hedgerow, etc.) those lines might be seen as an agreement. That would be boundary by acquiescence. Although your current neighbor had a survey done around 2005, he seems to have accepted the situation and made no effort to eject you. He may have been advised about the cost and difficulty of doing that.

It's going to be up to you to decide what outcome you desire in this situation. Obviously the garage and driveway issues should be resolved quickly if you are considering selling. A grant of a permanent easement by the neighbor would probably be the simplest solution to that problem. It would be far better, I would think, for him to grant the easement than face a suit for adverse possession or boundary by acquiescence, or some other theory, where he would possibly lose the whole area in question.

A garage in place since 1968 without challenge for decades is probably not going to be ordered to be removed by a court. Some other remedy will be found, which can't be predicted here.

A lawsuit would be very expensive for both of you. If you want to try to avoid that, the easement approach could be a place to start.

Good Luck!

[RCR]

Thanks very much for the reply.

That's an interesting solution. I'm curious whether my neighbor's mortgage company needs to be involved, and how it might be viewed by a potential buyer of my property (and their lender). I will have to look into it further.

Thanks again!

[LandSurveyor]

If you go to court, the neighbor's mortgage company will probably have little to say and will be bound by the outcome whether they agree to it or not.

Your neighbor's title insurance company, if any, will most likely have disclaimed responsibility for problems (such as your possible encroachments) which would have been revealed beforehand by a proper land survey. No help for him there.

It's going to cost some time and money to solve this problem. I'd recommend getting a local real estate attorney for advice. I feel that there is hope for a negotiated solution, which would be at the lower cost end of the options for both of you.