What Can I Do About a Neighbor's Deck that Encroaches on My Property?
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Answer:
When a neighbor builds a structure that intrudes on your property, it is called an encroachment. An encroachment is something that would need to be disclosed by the owner if using a deed that guarantees clear title, free from encumbrances. However, a quit claim deed may by used, so as not to make any such warranties. The landowner encroached upon may take several courses of action. A private agreement with the neighbor, or a court quiet title action may be brought to force the neighbor to remove the encroachment or pay for the value of the property encroached upon. An easement agreement may also be negotiated, allowing the neighbor use of the encroached upon land. If no action is taken, a letter to the neighbor granting permission of use is recommeneded to avoid an adverse possession claim. Please see the links to the forms below.
A quiet title or trespass to try title action is the method of determining title to lands. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.
In the case of an encroachment, a plaintiff may be awarded the fair value of the property. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.
The basis of a defense to encroachment is adverse possession. The doctrine of "adverse possession" is one of the most interesting in the field of real property law. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. The time period in Michigan is 15 years. To establish adverse possession the claimant must show by clear and cogent proof that possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
