Question: My next-door neighbor's shed roof overhangs into my yard by nine inches, using the back wall of the shed as part of the fence. We have a straight line between the properties, but some of his posts are on our property. He refused to use a plumb line -- instead he just eyed it. While nine inches is not the end of the world, the fence is right next to my house. The neighbor threatened us after I told him we would take legal action if he did not move his fence back to the property line. He tried to take 65 square feet of my front yard, contending that the mark on the sidewalk designates the property line.
We are currently refinancing our house. Will the appraiser care?
I would have taken him to court months ago but I got laid off and he built the fence the day our son was born. We had more important things to do. The city will have nothing to do with this.
Answer: You are describing a brazen example of "encroachment," which is an "unauthorized infringement on a property owner's rights as a result of physical intrusion," according to my National Real Estate Principles textbook. Let there be no mistake: This is a serious offense against your property rights.
You must take the following actions as soon as possible (meaning, within the next few days):
1. Dig out your survey from when you purchased the house. If you can't locate it, then pay for a new one. The survey removes all debate from the discussion with your neighbor as to what post, sidewalk line, old maple tree or other supposed marker is where his property line begins and where yours ends.
2. Schedule a meeting with your neighbor to go over the survey so that he cannot claim that he didn't know where the real property line is located.
If this piece of information is enough to bring him to his senses, then that means the fence and the shed need to be moved. If the relationship with the neighbor is important to you, (and I hope it is) you may even offer to help him with the moving of the additions. This will show him that you're willing to go the extra step to help him adhere to the survey. I know it seems like a lot of work on your part, even though you've been victimized here, but I also believe your relationship with this person -- regardless how strained -- needs to be mended, as well as the fence. Living happily together with our neighbors is what makes a community.
3. Take the survey to the Planning Commission and see what they will do about it. If they say it's not their concern, then proceed to the next step.
4. Contact an attorney. You must understand that even though he has encroached on your property, if it goes uncontested for a particular length of time the property could revert to him through a process called "adverse possession."
Adverse possession is "a means by which title may be acquired, through the actual, hostile, open and notorious, exclusive and continuous occupancy by one who does not have title," again, from the aforementioned textbook. It sounds like your neighbor has read the same book.
5. One other possibility is for you and your neighbor to strike a deal. Have both lots resurveyed with his lot being expanded, yours reduced, and have the new surveys recorded at the courthouse. If you're in a cookie-cutter development that is ruled by homeowner association regulations, this may not be an option. Check with your HOA board of directors to see if you have any recourse through them, as well.
Otherwise, as you try to sell the house, title insurance companies may not be willing to insure against title issues when they see that the neighbor's fence and shed are on your property. It may affect your refinance as well -- check with the loan officer.
6. Finally, dig out your title insurance policy. You may actually be covered for encroachment. I know of some policies that cover up to $5,000 to handle such a situation.