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Property Encroachment - LONG

10K views 59 replies 17 participants last post by  stevenson 
#1 ·
Does anyone have any experience with this? My neighbour's shop extends over the property line and there are also sheds and other things well over the property line.

I am doing the legal thing, but I'm wondering if I should enquire at my municipal office about by-laws myself. My hesitation is that this is a very small town and I am not part of the "in" crowd. I wonder if letting my lawyer handle everything will be better.

My neighbour is not approachable <sigh> and this is a major deal. I am not willing to discuss this at all with him as I have found him to be fiery and verbally aggressive in the past. Many people feel the same way about him. The surveyors were not impressed when they were threatened.

Can I put a lien on his property until this is resolved? Or register the encroachment at the land office? I know he tried to sell before, but of course, no deal came through and the for sale sign came down. But I don't want that property changing hands, even to a spouse or through inheritance or to a bank without this being resolved. I figure a lien will get the bank on his case if that becomes necessary.

I've read that in some areas it's possible that once the encroachment has been brought to light that the owners are obligated to resolve the issue. Any idea if that's a provincial or municipal thing? I would imagine it's municipal, but I dunno... Maybe MPAC (Municipal Property Assessment Corporation) has some impact on this.

I am not terribly upset about this. I am disappointed because we had other plans for the land there. There is a solution, where we toss those plans, but I'm not sure the neighbour is going to like it. However, I am not willing to get screwed over because he managed to winaggle a bogus building permit, or didn't get one at all (before we moved here).

Yes, the building was already there along with other stuff, when we bought the place. Rural properties are rarely surveyed upon purchase here, so we just figured we do it later. Plus, we bought it from a bank; figured that they would have been concerned with such an issue when they put it up for repo-sale. My lawyer thinks that our title insurance may kick in, but he's not sure yet because we shifted the property from MDH to me a few years ago.

Maybe I'm worrying too much and a simple letter from my lawyer will get an agreement from the neighbour without a fuss. Who knows.
 
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#3 ·
Definitely something that only a lawyer who is looking at the paperwork can address. Let the lawyer do the work and try not to get directly involved in conversations with anyone about it.
 
#4 ·
I have no idea how it is in Ontario, but I will tell you that here in NY, I am dealing with a similar issue. However, I know the laws, am having a new survey done, and am taking pictures when they do it so the neighbor cannot move stuff, as he has a history (even tho it is illegal) of doing. I also know that around here, if they are allowed to use property for a period of time, they can claim a right to it. SO, I sm obnoxious about him knowing what and where I own.....for example, I own the bottom 10 ft of his driveway. So, I park there when I feel like it, and make sure he KNOWS I am parked there. I also own about 2' of his steps down to the lake, and part of what he uses for his frontage to the lake. (by law our fence has to be 2 ft off the line, which is why he has this....HATE this law) So, I regularly make him aware of what and where I own. This year he has gotten obnoxious, so at the end of the summer season, after the new survey is done we will send him a letter to 1) move his stairs off our property. and 2) move his driveway because we will start using it as a parking space next spring. I cannot deny him access, so have to give him notice and will have to call the lawyer and double check.....but I think a year is long enough for him to move his utilities and move his driveway.

So, if I were you, I would contact a lawyer ASAP. Do not continue to let this guy use your property. ASk the lawyer about requiring it to be moved, etc. YOu may need to send it is writing, etc.....with notice.....

My neighbor is well known as the town slum lord and is older, but still has been knows to come after me on my own dock.....next time he will be in the water.....I have had it. Mine even has renters who look in my windows. Creepy. GOod luck!
 
#9 ·
I have no idea how it is in Ontario, but I will tell you that here in NY, I am dealing with a similar issue. However, I know the laws, am having a new survey done, and am taking pictures when they do it so the neighbor cannot move stuff, as he has a history (even tho it is illegal) of doing. I also know that around here, if they are allowed to use property for a period of time, they can claim a right to it. SO, I sm obnoxious about him knowing what and where I own.....for example, I own the bottom 10 ft of his driveway. So, I park there when I feel like it, and make sure he KNOWS I am parked there. I also own about 2' of his steps down to the lake, and part of what he uses for his frontage to the lake. (by law our fence has to be 2 ft off the line, which is why he has this....HATE this law) So, I regularly make him aware of what and where I own. This year he has gotten obnoxious, so at the end of the summer season, after the new survey is done we will send him a letter to 1) move his stairs off our property. and 2) move his driveway because we will start using it as a parking space next spring. I cannot deny him access, so have to give him notice and will have to call the lawyer and double check.....but I think a year is long enough for him to move his utilities and move his driveway.

So, if I were you, I would contact a lawyer ASAP. Do not continue to let this guy use your property. ASk the lawyer about requiring it to be moved, etc. YOu may need to send it is writing, etc.....with notice.....

My neighbor is well known as the town slum lord and is older, but still has been knows to come after me on my own dock.....next time he will be in the water.....I have had it. Mine even has renters who look in my windows. Creepy. GOod luck!
Are you sure he doesn't have an easement for the driveway?
 
#5 ·
First..even if it is shown the building is over the line, is it a building that can actually be moved? There is a common sense thing here. Due to an error on the part of the county my brother's neighbors house extended 8 inches over the property line. The neighbor simply bought the 8 inches (in a straight line from back to front of property) at fair market value as obviously the house couldn't be "moved" unless it was torn down and rebuilt.
 
#6 ·
Not sure how that could happen, being that there are setbacks on all builds......usually 10-15 ft. Depends on where you are, I supposed. Out in the country is one thing. Waterfront, which is where I am-there are battles over 6 inches. It also depends on the neighbor Some are totally the "take a mile" mentality, and others are gracious and genuine in their remorse. Mine is the former. If you have acres and acres, yes, one solution is to sell them the land at fair market value, with them paying the associated costs.
 
#7 ·
In my brother's case it was an addition the neighbor added on post build. The county readily admitted they goofed on their surveying when the owner applied for the building permit. The neighbor's, and my brother's, houses had been sold a couple of times post build and no one ever questioned.
 
#14 ·
Just looked up Eminent Domain. It is the power of the government/state to seize land for purposes such as building highways. Not individuals. At even then, they have to pay for it. I remember now that the highway did that to my dad's property when I was a teen.
 
#10 ·
Depends on your judge I would say.

Several years ago a neighbor of my best friend had gone into home, his property sat vacant, and the idiots down the hill behind the house built a house about 20 feet into the vacant house's land. Son saw what had happened, but the law said it was okay for the house to be built. Didn't make the jerk pay for it, remove it or anything. Basically got away with about 1/2 acre as they had put a fence up too.

Hope your judge and town is better than that.
 
#12 · (Edited)
Wow, thanks for all the input everyone. Except Joe4d - really... sheesh... So you have no knowledge about anything other than horses? What a narrow life you must lead.

I will try to respond to everything posted. If I miss something, please just post again.

Yes, there is supposed to be a set back here as well. How he managed to build his garage there is beyond me. I suspect that there was some nepotism involved. No, the garage can't be moved. Yes, selling a piece of the land is probably the only option. It sucks that *I* have to sell when he is the one that screwed up on the building along with the township. Also, I can't just sell him the little bit that he needs. I already checked with zoning; I have to sell a rather large chunk with road access. I'm not impressed. He also definitely knows he is on our property. When he figured it out, I have no idea. From day one that we bought the place I questioned the lines over there and walked around over there several times, making it very obvious that I was questioning where he put his stuff. Also, even if this had come to light when we were buying, there is no way that we would have had the time and resources to deal with it at the time.

There is, or used to be anyway, a "squatter's rights" law of some kind here. But it has been disputed many times and the time line is something like 20 or 30 years. It has been used to allow continued access through private property, but not much for buildings that I am aware of. Maybe I'll do a bit of reading for curiosity's sake.

Eminent Domain. Hmmm. Sounds familiar. I will ask/read. Regardless though the issue will be that the planning office will not allow the property line to be moved just enough to cover what he is using. Which means I suffer doubly. And he definitely knows. Did he know when the building was erected? I don't know, but again, back to the township and the building permit... someone should have been responsible for this. After all, part of the reason I was dealing with this now is because we are finally in a position to build a road access point there and wanted to make sure that I knew where the lines are before making any applications.

I also took pictures as soon as the surveyors left. Just lucky that I was home the day they came. Within hours at least one stake was removed. I suspect that I will find that one or 3 more have been removed. Doesn't matter. There are iron bars in the bedrock now. The surveyor knew what he was dealing with and wanted to ensure the guy couldn't mess it up.

I have to wait for the survey papers to come back, then I will take them to the lawyer. He can't do anything until he has those. And it took about three months just to ensure I could use that lawyer. I started the survey process over a year ago. This is a slooooow process.

And this is only the front part of our property. If I ever have lots of money and decided I still would want to live here, I would have the entire property surveyed. It would only cost well over $10,000 to do. :shock: I'd rather put the $10K into a different property though if I did have lots of money. That's why most people don't survey properties here.
 
#13 ·
Also, I need to remember to ask if there is any obligation to deal with encroachment as soon as someone becomes aware. Because he definitely knew for sure that there was a problem before I knew for sure. That would possibly mean that he is more so in the wrong.

Honestly, if I was a nasty person, I'd try to figure out some way to make him tear down his garage. He's not a nice person and it would be awesome to be able to stick it to him. But, I wouldn't be able to sleep at night if I did that. So, once again, the nice guy gets screwed. For this reason, I am not willing to sell him the land at market value. It's worth far more than that to him. He can't do diddly squat with his property the way it is now; I'm going to make sure of that.
 
#15 ·
I just looked up Squatter's Rights as well. It is only 10 years apparently. Yikes! Anyway we should be within that limit, because I initiated the process before 10 years was up. And still, the planning office restrictions should have some application. What a mess. I sure hope my lawyer is good. And I sure hope our title insurance will help us. I wonder if there is a time limit on the title insurance?

Ach. I just want the papers now to be able to hand this over to the lawyer.
 
#16 ·
I can only speak for here in my state right now since I am most familiar with the regulations here. I have gone online to my local town that has jurisdiction and printed out the zoning laws and know then well. I also go to talk to the zoning officer if I have a question so he knows all my issues. I am hoping you can do somewhat the same thing. Here you could make him tear it down. It would not be easy but lawyers Eric working with the code enforcement officer can do it.

Good luck. Let us know how it goes.
 
#19 ·
update

So we got the drawings and the neighbour definitely has buildings over the line. :-( I have sent the papers to the lawyer and we'll go from there. Next step is a meeting with the lawyer to see what he suggests.

Man, this takes forever. It's been well over a year since I initiated this and still haven't even met with the lawyer. I'm thinking this is going to take at least 3 years to get resolved.
 
#21 ·
How annoying! We had a neighbor move next door who didn't speak English. He thought his property started where the fence ended, when we owned several feet of property next to the fence. He was going to put a bunch of stuff there (plants), drive way etc. He actually called the police when my dad (who is a surveyor) went out there to measure and put up tape!

This was the same neighbor who blasted illegal fireworks over my barn every year for the 4th of July! I swear he was aiming above the barn!

When we moved out (a year or two later), a policeman bought our house. :twisted:

Does he have permits? If he doesn't have permits, anything he built can be torn down if it is not up to code.
 
#22 ·
Saddlebag - this has nothing to do with municipal council at this point. All must be done through legal channels.

4horses - well, building permits are enforced now... whether they were when he built, I don't know and there was a lot of nepotism at the time in council as well. On top of all that, this is a fairly rural area and people didn't seem to have any respect/concern about property lines -- as long as you had a "rough" idea. Wow.... I doubt I could ask him to tear it down. It's been a while and a tear down would be very expensive, not to mention extremely bad karma in a small community.
 
#23 ·
Here is the problem, and of course you will have to check your jurisdiction. But, in many areas, if you let it go a number of years, they basically have rights to it. I have this issue with my neighbor when it comes to many things, but, I know I own the end of his driveway. He knows I know, he knows I park there sometimes.....I cannot "deny him access", however, I can make his miserable self MORE miserable. There is no "right of way"......but-it I ignore it, eventually, he just has rights to it. He also knows not to annoy me.....I will go to a lawyer IN A HEARTBEAT and send him a letter giving him notice to move his driveway. We have had issues since my dad owned this property, and he and I have had it out before. Anyway-it also becomes an issue when/if either property is sold......it makes yours difficult to sell, as well as his, since some of the buildings he would be selling are on YOUR property. In my case, I have made it abundantly clear to my neighbor that there is not nor will there EVER be a right of way legally. Therefore, he is basically shafted in selling. We are not in this for a popularity contest. Our real estate is probably our biggest asset. Don't let someone else mess that up. Be smart about it.

Add:some things MAY be grandfathered in....you just have to know your building and zoning code, and if in question call the town.
 
#24 ·
I've been "the nice guy" one too many times. Its not worth it in the end. Even people who you think are good neighbours will most of the time put themselves first, if it comes right down to it.

If you need the piece of land that his garage sits on, and the garage is in your way, get it torn down. He most likely knew exactly what he was doing in the first place, and was willing to take the risk in hopes no one would notice or have the guts to enforce the property line. The fact that he's threatening and interfering with a lawful survey speaks volumes.

I'm sorry, but the law is the law, and you paid for your land fair and square. Anyone who would criticize you for taking what is rightfully yours is very naiive. Besides, its easy to judge when its not YOUR land being stolen.
 
#25 ·
franknbeans - yes, I know about the time thing. In Ontario, apparently it is 10 years. But there is some grey area there as well. I have already taken into consideration the selling of property. He would be far more screwed than I would be, so I am in somewhat of a position of power here. If we can't settle it now, then I will register the drawing as required so anyone that looks into buying his property will know that there is an encroachment. I can certainly let this fester in my craw for many years. <insert evil laugh here>

Fourteen - no, I will not make him tear it down. I need to sleep at night too. He's an a$$; I'm not. I will be reasonable, but I will get my fair buck as well.
 
#26 ·
Its not about being an ***, its about doing what you want or need to do with your property, within your rights as a landowner.

What do you foresee as a best case scenario as a resolution? Do you think he will volunteer to remove it, or stop encroaching on your land? Do you think anyone will buy your property in the future knowing there's an encroachment by an unfriendly neighbour that comes with the deal?

Stop thinking emotionally. This is a legal matter not a family squabble. You do not need to feel guilty, you are not the one breaking the law. JMO
 
#27 ·
For him to tear down the shop, the financial costs are huge. It is, IMO, unreasonable for me to ask him to tear down a shop that is worth over $100,000 probably because it's over the line by a few feet. Of course, if he is not willing to pay me for those few feet, well then he can tear the darn thing down. I think a court would say that I should accept a reasonable payment for that section of land.

The best solution is a severance to sell him whatever portion he needs. The difficulties are what the planning committee will allow, the costs I have incurred, the costs to do the severance and determining the value of the land that I would sell. Keeping in mind that we fully expected to be able to sever another portion that had enough road allowance for a full driveway over there.

I'm not thinking emotionally. If I was, the guy would get diddly squat and I would get $$$$$ big bucks. I'm thinking reasonably.
 
#28 ·
Northern-Will the jurisdiction involved automatically allow a variance because obviously they said structure is not even close to the setbacks that most places have? I would think you also have them? Here it varies somewhat as to the zoning of the land and type of structure, but, for example, by setback is 15' each side. My house is closer than that, so I had to go to the town and file for a variance. Some things are grandfathered in. (as it turned out, mine was, since the structure we were tearing down and the new one were in the exact same place).

I would think, given the value of the building, you basically have this guy by the "short hairs" so to speak.
 
#29 ·
FNB - not sure what you mean... I have already inquired at the planning board and they will allow me to move the property line, but they may not allow me to move it only 10 meters (or whatever it is. I forget.). I may have to sell him a larger chunk and that is something I don't want to do. However, my land $urveyor a$$sures me that he can get the planning commissioner to do whatever we decide we want to do because she is relatively new and he is $pecial. LOL.

Ya, I figure one way or another I will get something out of this. Just a question of how much, and when.
 
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