Neighbor's Driveway Encroaches on My Property

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

I apologize in advance for all the info! :D

(Back Story and Info) Roughly 14-15 years ago, my father and his neighbor made an agreement that they would both build a large driveway where his property meets my father's. The driveway would have a gap in the middle where a 12' long rail fence would be built along my dad's property line. The fence and our part of the driveway would be 100% on our property and his driveway 100% property. The reason my dad wanted to do the driveways at the same time was so we could have "common approach" and the city wouldn't require us to have a 5' radius from the property lines (we'd have a huge gap between the driveways if we had the radius). The city builder said that if we wanted a common approach we'd have to have a written and signed document saying that we agree to the common approach.

A year or two later my dad and our whole family moved to a different state for his career for 4 years. At some point while we were gone, the neighbor built his driveway against our property line and put the five foot radius on our property. He never sought my dad's permission to build on our property.

Fast forward to today, I now own the house and am in the process of having some additional concrete and fence work done, so we are planning on hiring a land surveyor to mark all of our property lines so I don't encroach on either neighbors lots. I was chatting with my neighbor who built the encroaching driveway and I mentioned that I was thinking of finally putting in that driveway that my dad had wanted to. He didn't want to agree to a common approach. I mentioned that his radius was on my property to begin with to which he shrugged off. Plus he keeps trying to claim that my fence's retaining wall is on his property, even though we had the fence layout surveyed and it was 100% in our lot.

My questions: I don't know what the year was that he built that driveway since he built it while we lived in a different state. How can I/Can I avoid him taking that part where the radius is in my yard through adverse possession? What would he be required to present to prove the date it was installed? Also, does it matter that we were in a different state and didn't discover the driveway until we moved back? Would the 15 years clock start when we actually discovered the encroachment? And lastly, if my retaining wall is in his yard, since he hasn't done anything to correct it would I gain what the retaining wall covers through adverse possession? The retaining wall and fence have been there since 1993.

I know this may seem petty to worry about a small section, but the guy has always been kind of a jerk to everyone even though everyone is always friendly with him. So I'd rather not let him get any of my property regardless of how much it is.

Thanks for the help and advice!!

oklahoma adverse possession requires 15 years, per your timeline he could only have been on that land 12-14 years at most and should not qualify. confirm the timeline and take action now to get him off your land

Would action be sending him something in writing explaining that it is on my side of the property line and he needs to remove it? And then take further legal action if needed?

I'm getting my timeline of events from my father who lives in a different state now, so I'm hoping it's not off by multiple years.

For the sake of argument and to make sure I understand this adverse possession, lets say it's actually been 15 years since it was poured. He would have to meet both "Exclusive use of the property" and "Continuous use of the property" in addition to the other three requirements correct? I've always maintained the grass on and around the radius (mowing, trimming, and weed-eating grass that gross in its expansion joint), so would it still be exclusive use? Also, the house was unoccupied and on the market for a few months, before he decided not to sell. Would that strike out continuous use?

Thanks again for all the help! Hopefully this can be resolved quick and without too much trouble!

I am not a real estate lawyer I am not a lawyer at all, but I don't think the vacancy would matter as the driveway was still occupying the land but I could be wrong.

Send a demand letter telling him to remove all structures from your land.

Thanks for the help and advice.

I'm going to have the land surveyor come out before construction begins and also begin the legal process of having his structure removed from my property. Since he won't reason with me and gets verbally and visually upset when I try to explain anything to him, I think going through a lawyer is the only way to resolve the issue with him. And if it does turn out that part of our un-shared fence is on his yard (even though we had a land surveyor layout everything prior to its construction), I'll go ahead and look into claiming that section through adverse possession since we've occupied that part of his lot with our fence since 1993.

Why can't owning property just be easy and trouble free! haha

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He would have to meet both "Exclusive use of the property" and "Continuous use of the property" in addition to the other three requirements correct? I've always maintained the grass on and around the radius (mowing, trimming, and weed-eating grass that gross in its expansion joint), so would it still be exclusive use?

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If I were the neighbor I would not be seeking an adverse possession claim for a driveway. I would be seeking a prescriptive easement. I think that is what you really need to be watching out for, not AP.

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Also, does it matter that we were in a different state and didn't discover the driveway until we moved back?

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It does not matter unless you were a minor child.

If the retaining wall is on your property per your surveyor I wouldn't worry about it.

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Quoting OklahomaJeeper91

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Thanks for the help and advice.

I'm going to have the land surveyor come out before construction begins and also begin the legal process of having his structure removed from my property. Since he won't reason with me and gets verbally and visually upset when I try to explain anything to him, I think going through a lawyer is the only way to resolve the issue with him. And if it does turn out that part of our un-shared fence is on his yard (even though we had a land surveyor layout everything prior to its construction), I'll go ahead and look into claiming that section through adverse possession since we've occupied that part of his lot with our fence since 1993.

Why can't owning property just be easy and trouble free! haha

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I am confused a bit. From what you originally said it sounded as though the neighbor's driveway was not actually on your property, but was rather not set back the required 5 feet from the property line. That doesn't mean that anything is on your property. It doesn't mean that the 5 foot radius is located on your property, it simply means that there is no 5 foot radius at all. If there was a written agreement to allow that, then when he is doing wrong is to not allow you to do the same according to the written agreement. He has not taken or used any of your property.

LandSurveyor: I'll talk to our lawyer about the prescriptive easement and see what we can do about it. Thanks for the heads up on that, I never even looked at if it could be more of an easement issue than an adverse possession.

llworking: You're correct, the driveway itself is not on my property, it is his 5 foot radius that is on my property.
However, there was only a verbal agreement between him and my dad about building their driveways side by side. And he never got my dads permission to build the radius on our property.

I attached a drawing I did in MS Paint to see if I could explain it better.

http://farm3.staticflickr.com/2842/9...5ece6631ee.jpg
Driveway by anonanon7, on Flickr

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Quoting OklahomaJeeper91

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LandSurveyor: I'll talk to our lawyer about the prescriptive easement and see what we can do about it. Thanks for the heads up on that, I never even looked at if it could be more of an easement issue than an adverse possession.

llworking: You're correct, the driveway itself is not on my property, it is his 5 foot radius that is on my property.
However, there was only a verbal agreement between him and my dad about building their driveways side by side. And he never got my dads permission to build the radius on our property.

I attached a drawing I did in MS Paint to see if I could explain it better.

http://farm3.staticflickr.com/2842/9...5ece6631ee.jpg
Driveway by anonanon7, on Flickr

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I don't think that you understand what "5 foot radius" means.

It means that according to your municipal code, driveways are supposed to be 5 feet from any property line. His driveway is NOT 5 feet from the property line, its right on the property line. That does not mean that his "5 foot radius" is on your property. It simply means that he does not HAVE any radius at all, let alone a 5 foot one.

Therefore, this is definitely not an adverse possession case, and unlikely even an easement case. He violated one of your local codes by building his driveway up to the property line instead of 5 feet away from the property line. He is not encroaching on your property.

You really need to ask a local real estate attorney whether or not the city would be likely to make him move his driveway when its been that way for 15 years.

I see, thanks for clearing that up for me! So I don't need to worry about him claiming adverse possession or any easement for that section. Based on your guys' experiences, what do you think the city would do if notified of it violating the city building codes? It kind of makes me think that he never even got a building permit since the city would have told him to put a 5' radius from the property line.

Thanks again for everyone's help, it's nice to be as informed as possible before talking with a lawyer or even the city.