Honey, I shrunk the property.
May 31, 2010 9:46 AM   Subscribe

A neighbor has built a retaining wall that extends a few inches into my property. What action should I take?

The two properties in question (mine and his) are income rentals, and the construction was undertaken to repair a retaining wall that had deteriorated. After the concrete hardened, I determined that about 6 inches of the new wall extends across the property line into my section. Obviously, my neighbor or his construction crew were lax about following the survey to the letter (if they even consulted the survey at all!). Since the wall is 45 feet long, I've lost about 22.5 square feet of property altogether, or 0.5 % of my total land footprint.

I know that you're not my lawyer, and that I should discuss this matter with my own lawyer (and I will), but what options do I have for resolving a structural encumbrance of this sort? My first instinct, given the tiny percentage of lost property, is to do nothing, and let the matter slide. However, is there a possibility that my title might be affected, perhaps when a new survey is undertaken? Also, could I demand compensation for the lost (or, more precisely, encumbered) property that is in excess of the several grand in legal fees I might end up spending?
posted by Gordion Knott to Law & Government (21 answers total) 2 users marked this as a favorite
Response by poster: Further information: the wall is noted on my survey as a "retaining wall along the property line," meaning that it's a common wall shared by me and my neighbor.
posted by Gordion Knott at 9:52 AM on May 31, 2010

So this wall crosses your property line at some acute angle near 90 degrees, and by 6 inches? Is the wall of benefit to your property too, ie, it is preventing your matter from sliding? Sounds like a pretty quick job with a concrete saw if you want it out, but for me, I'd 'let it slide'.
posted by TDIpod at 9:54 AM on May 31, 2010

This happened to my grandfather many years ago. He sold the slice of land to his neighbor for $1.
posted by sanko at 9:55 AM on May 31, 2010 [1 favorite]

I don't know where you are but in at least some places, allowing your neighbour to use your property (eg by fencing part of it off/placing the fence in the wrong place) can, after a period of time, mean that you legally lose the right to that property and it becomes your neighbour's land. So I would look into the laws in your location before deciding to just let it slide.
posted by ask me please at 9:57 AM on May 31, 2010 [9 favorites]

Might be worth asking if he can buy the land off you, but I'd just let it slide unless I was already itching for a fight with the neighbor
posted by ish__ at 9:59 AM on May 31, 2010

Do you benefit from this wall in any manner? If so, I would let it go... especially if he paid for the wall.
posted by HuronBob at 10:03 AM on May 31, 2010 [1 favorite]

OK, your edit makes it clearer- sounds like the wall is straddling the property line, that 6" of the thickness is on your side. Without the wall would his dirt continue to erode into your property, or yours into the neighbors? I think you got a good deal since other owner didn't ask you to help pay for it,
posted by TDIpod at 10:04 AM on May 31, 2010

When the property is no longer yours, there will most likely be a problem. The land deed will say you own the land and the new owner will have to deal with.

I wouldn't let this slide. It's going to be a lot easier to fix now when it's fresh rather than years in the future when the new owner of your place wants all of the land they paid for. Selling the land like what's already been suggester here would work. The closest I would come to letting it slide is not making your neighbor actually pay you.
posted by theichibun at 10:07 AM on May 31, 2010 [4 favorites]

Whatever agreement you end up working out with your neighbor, I would suggest you take whatever steps are necessary to make it all official and legal, rather than just a handshake. You never know what might happen in the future, and if you don't have all your ducks in a row, it could cause a big headache when it comes time to sell, or time to apply for a building permit, or whatever.
posted by spilon at 10:09 AM on May 31, 2010

I wouldn't let it go. 0.5 percent of your property is not an insignificant amount of property. Would you let someone take 0.5 percent of your savings in the bank? Of course not.

If you don't get a lawyer and address this, the land will eventually belong to your neighbor.
posted by jayder at 10:15 AM on May 31, 2010

This happened to my grandfather many years ago. He sold the slice of land to his neighbor for $1.

This happened to my grandfather too. He, instead, rented the slice of land to his neighbor for $1/year. Of course, my grandfather was a lawyer.
posted by grouse at 10:15 AM on May 31, 2010 [9 favorites]

One thing I would try to make clear with the neighbor, no matter what else happens, is to delineate responsibility of the wall clearly. It's a retaining wall ... so it's retaining something ... and if it's on your property, and something happens that causes a liability, it will be an interesting legal entanglement to determine fault and responsibility. "He built it, so it's HIS wall." "Yeah, but it's on HIS property." "But YOU built it on MY property."
posted by Cool Papa Bell at 10:28 AM on May 31, 2010 [1 favorite]

The land deed will say you own the land [...] It's going to be a lot easier to fix now when it's fresh rather than years in the future when the new owner of your place wants all of the land they paid for.

I've only seen a few land deeds, but none that I've seen has been precise to 6 inches.
posted by Mike1024 at 10:29 AM on May 31, 2010

You shouldn't do nothing. It's your land.

But then, assuming your property isn't devalued in any way, it's not worth making a big fuss over.

Talk to your neighbour. Explain what has happened and work out a way to engage lawyers to come up with a solution as cheaply as possible that your neighbour pays for.
posted by MuffinMan at 10:45 AM on May 31, 2010

This discusses Hawaiian law, but it's worth checking out for general principles even if you're elsewhere.
Basically, 6 inches or less is de minimis encroachment, but the title company may still want a signed and filed agreement to avoid issues in selling the property. An encroachment agreement allows the retaining wall to stay in place but clarifies that the property remains the possession of the original owner. A nice, simple way to maintain your rights without causing unneeded trouble with the neighbor.
posted by katemonster at 11:01 AM on May 31, 2010

He, instead, rented the slice of land to his neighbor for $1/year. Of course, my grandfather was a lawyer.

Smart solution. It maintains relations with the neighbor while preventing title from passing through adverse possession.
posted by jayder at 11:06 AM on May 31, 2010 [3 favorites]

Cool Papa Bell's point is a good one. My sister is in a vaguely similar situation (neighbor's poorly-conceived retaining wall is slowly collapsing onto her property, neighbor acts like the wall's no longer their problem).

As a matter of neighborly relations, though, keep in mind that you're benefiting from the construction too, and since it sounds like you didn't help pay for it, starting out on a friendlier foot seems appropriate. It seems unlikely that losing that 0.5% of land actually reduces your income from this land by 0.5%, after all.

I would see a lawyer about simply drawing up a written agreement stating that, yes, the property line is a few inches behind that wall, but wall maintenance is still the neighbor's responsibility. The lawyer will be able to give you better advice on whether a $1/year lease or something is needed to keep the title uncomplicated. That kind of real-estate law varies from state to state, so it's something you'll need local legal advice on.
posted by hattifattener at 11:34 AM on May 31, 2010

(or basically what katemonster said)
posted by hattifattener at 11:37 AM on May 31, 2010

1. See a lawyer. He or she will suggest one or more of the following.
2. You could demand that the wall be taken down and rebuilt.
3. Hatti is on the right track. You could grant an easement to allow the wall to remain, with maintenance the neighbor's responsibility. It could be limited to a long term of years, say 20, so that it could be renegotiated as needed at that point. The idea is to have something of record that establishes that you are not sitting on your rights, since doing so for too long could result in the loss of title to that thin strip.
posted by megatherium at 12:38 PM on May 31, 2010

Go read about adverse possession so that when you sit down to have a conversation with your lawyer you will have some background and he or she will spend less time explaining this to you on the clock. Each state has its own laws regarding this but essentially if you are silent then after time you will lose possession. Your lawyer will explain the time periods, how to legally break that silence in your state, etc. (I love Grouse's idea above.) Even if you are getting a benefit you do not want to cede title to your slice of land. Lawyer up.
posted by caddis at 6:13 PM on May 31, 2010

You need to see an attorney. If the wall truly is common property, you should have been responsible for part of the cost, but you aren't running the risk of losing the land. If it is in fact the neighbor's property, the property will eventually become theirs.
posted by wierdo at 6:27 PM on May 31, 2010

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