How Do I Remove an Encroachment So I Can Sell My Property?
Full Question:
Answer:
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.
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.
The laws of adverse possession allow a person to obtain title to land by simply using the land for a period of time specified by state law. The period in Illinois is 20 years. For example, a neighboring property owner may have built a fence, placing it several feet inward on his property. If a person knows that a fence is on his land, but do not dispute its placement, title to that portion of the property could be lost. The intruder's use of the land must be in the open for everyone to see. Title to land is acquired by adverse possession as a result of the lapse of the statute of limitations for ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.
In order that adverse possession ripen into legal title, non-permissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough.
While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in bankruptcy.
Theoretically you might demand to have it removed/changed or bargain for easement rights. It may be possible to alert the neighbor to the encroachment with a notice or enter into an agreement for an easement. The neighbor may claim that the encroachment has existed for more than 20 years. If that is true, the neighbor may have obtained an "easement by prescription," giving the neighbor the right to continue use of your property. It is likely that the buyer is using this as leverage to get a reduced price, as an overhang of 4 inches doesn’t usually limit use of the property in a significant way.
