How to deal with property encroachment?

Question

Hi there everyone, I recently purchased a property and it came with some property encroachment from the neighbor. Wondering how some of y’all have dealt with this situation and best way to approach the neighbor about it. Any pointers will help.

Thank you!

Jon Holdman · Answer

Not sure I understand.  Do you mean you have to go through their property to get to your meter or that you have to go through the area they have encroached on to get to your meter?  Have they built a fence or something around the area they have encroached on?  If they were not encroaching and had not fenced anything off would you be able to get to your meter without going into their property?

The title company would not have taken care of this.  They would have, at best, made you aware.  Really, its that survey that gives you the info, and you do have that.  You, the seller, and the neighbor should have sorted this out before closing.

I'll assume that if the encroachment was not there that you have full access to your property, including the meter.  That is, you do not need access their their property.  I'll also assume this is relatively recent.  Given those assumptions, I would go have a chat with them.  Show them the survey and point out that their garden is over the line.  Ask that they remove the garden.   Hopefully, they will say "oops, didn't realize we were over the line.  Sorry, we'll get right on that".  if they refuse, you have a mess.  Are there pins from the survey?  These take the form of rods or pipes driven into the ground permanently or sticks placed temporarily.  These unambiguously show where the property line is.  If push comes to shove, you can do what you want with your property, including tearing out the garden and fence. But if these don't exist you may have to pay the surveyor to come mark your property line. And realize you may want to avoid a dispute with the neighbor.

OTOH, if you need to go onto their property even if the encroachment is removed, you have a problem.  For this scenario I'll assume you do not have an easement.  You need an easement.  You might sort out a trade.  Give me an easement to access my property and I'll give you one for your garden.  In a situation where I had this problem (neighbors had drilled a well on a a property I was purchasing), I surveyed off a small portion of my property and gave it to them at closing.  In my case it was a tiny portion at the edge of the property and had little effect on me.

Yet another possibility is that this garden and the encroachment has been there for some years and the neighbors may have gained possession of part of the property via adverse possession.   A quick google search says adverse possession in FL takes seven years.  If that garden has been there for at least seven years, the neighbor may have a valid adverse possession claim they could use to legally take the part of the property they have been encroaching on.  If the garden has been there that long then your counter claim would be that the previous owners gave them permission to put their garden there.  And now you are withdrawing permission.

Can you elaborate on the situation?

Jon Holdman · Answer

This is the sort of thing best dealt with before closing.

What's the encroachment?  How long has it been there?  Did the title company find anything related to this?  Did you do a survey or improvement location certificate that shows the encroachment?  What does the neighbor say about it?

Jon Holdman · Answer

Those "small metal rods" are what I mean by "pins".  Did the surveyor place them or were they already there?  Ask the surveyor.  If he placed them, tells you were they were and they're gone, you're in for trouble.  That tells me the neighbors are aware of the encroachment and are going to fight you.  If they were permanent, you should be able to find them.  I've seen pins made out of 1.5" pipe with a cap and then the lines and lot numbers were carved into the cap.  I've also seen where the curbs have marks showing line locations.  You need to these pins to have a definite location of the line.

Once you've found that, you have the right to do what you want with your property.  Including tearing out the portion of their fence and garden that's on your property.  However, that's certain to create problems.  So, I would start with talking to them about the situation.  This sounds like a small encroachment so I assume its not like you trying to take back a significant portion of their garden.  OTOH, if you mean there is six feet between your two buildings and the line is in the middle and they're put a garden right up to your property, they may be testier.  But its their error, not yours.

At this point I think I'd plan on putting a fence right down the property line.  If the pins have been removed, you may need to get the surveyor back out there.

Gilbert Lugo · Answer

My apologies for not being more clear about the situation. It was pointed out before closing but I figured it would not be that big of a deal so I closed anyway. Big mistake. In order to reach my meter I have to go through their fenced patio area in order to reach the meter.

On the survey the surveyer point out small metal rods to establish property lines but after spending sometime looking they are nowhere to be found. I’ve been guiding myself by the property measurements on the survey. The garden looks like it’s been there well under 7 years.

Also with this garden and not having direct access to that part of the property it will be difficult to do any upgrades such as painting that side of the structure.

Matthew Paul · Answer

Send them a letter certified mail , let them know its your property and you reserve the right to tell them to remove the garden with 10 days notice .

This will stop the clock for adverse possession from ticking . ( In Maryland at least)

Jon Holdman · Answer

@Tom Gimer I saw that was a factor in FL adverse possession.  I wasn't sure that applied.  This seems to meet some of the criteria:

• Its actual.  They have a garden there.
• Its exclusive.  Nobody else is using the space of the garden.
• Its open.  The use is clear and obvious.

The criteria that aren't clear from @Gilbert Lugo's posts

• Its hostile.  If they have permission from the previous owner, no adverse possession.
• Its continuous for the required period.  Not clear how long this garden has been there.

The taxes would be another out.  I can't imagine the neighbors have been paying property taxes on this entire lot or that the county would accept taxes for just a sliver.

I'll admit I'm probably overly paranoid about this topic, stemming from the case in Boulder a few years ago where someone successfully took a slice of their neighbors property with adverse possession.

Tom Gimer · Answer

One element of adverse possession in FL is anyone who tries to make such a claim must have paid the taxes.

What was the point in getting a survey if nothing was going to be done about any problems shown?

How to deal with property encroachment?

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