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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 23402
Experience:  14 years real estate, Realtor. Landlord 24+ years
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My driveway is parallel to my neighbors driveway, theirs is

Customer Question

My driveway is parallel to my neighbor's driveway, theirs is elevated with a retaining wall. I hired a survey co. (highly recommended + best in town) to survey all my property lines. It turns out, 1/2 the retaining wall is on my side. The reason I wanted to know is that I am considering a fence before the new owners embark on a major renovation + addition.
This brings up two legal questions...
1) Can I stop the sale of the house (closing is in a few weeks) based on this property encroachment?
2) Can I erect a fence on top of that retaining wall in the cement since 1/2 is over the property line?
Thank you in advance for your expertise and advice.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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How long has the retaining wall been there?
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Thanks
Barrister
Customer: replied 1 year ago.

I was built by the current owner who bought it in June 2008.

Expert:  Barrister replied 1 year ago.
Ok, I just wanted to make sure that they hadn't hit the statute of limitations to claim the land through adverse possession.
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1) Can I stop the sale of the house (closing is in a few weeks) based on this property encroachment?
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You could effectively stop the sale but would need to file a suit against the owner for trespass and encroaching on your property and ask the court for an order of ejectment that would force them to move the wall.
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The sale could still legally continue, but no buyer in their right mind would buy a property that is in the middle of a lawsuit. Further you could file a "lis pendens" on the property at the county clerk/land records office that puts it in the formal record that the property is part of a legal action. This would prevent the seller from selling until they clear that lis pendens because it creates an encumbrance on the title and they couldn't convey clear title to the buyer.
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2) Can I erect a fence on top of that retaining wall in the cement since 1/2 is over the property line?
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Even though the wall is encroaching on your land, it is legally still their personal property. So unless you got permission from them to build the fence, you couldn't do so. But if you threatened to file suit to stop the sale unless they gave you written permission to build the fence, my bet is that they would agree rather than possibly lose the sale.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.


Thank you in advance for your expertise and advice.
Customer: replied 1 year ago.

What if the current owner obtained written permission by the previous owner (of my house) for this wall? Would that negate my suit?

Expert:  Barrister replied 1 year ago.
That could qualify as an unrecorded easement on the property and courts have consistently upheld easements, even though unrecorded, if they were open and obvious. Since the wall is pretty obvious, I would opine that if the neighbor had such a written permission from the previous owner that was executed when the previous owner owned the house, it would be legally binding.
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Thanks
Barrister
Customer: replied 1 year ago.

Thank you very much - you've been so helpful. Last question, does filing a suit against the neighbor and/or a formal alert to the county clerk -- stop the sale of the house even if the court ultimately upholds the easement?


 


 


 

Expert:  Barrister replied 1 year ago.
Yes, effectively it would stop the sale because along with the suit, you would want to file a "lis pendens" which would cloud the title. Since it is required that a seller convey clear title to the property, they couldn't do so while the lis pendens was on the property.
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And as I mentioned previously, no buyer is going to continue on with a purchase of a property that is the subject of a lawsuit. A lender typically won't finance a property that is in the middle of a lawsuit either.
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So filing suit definitely will throw a monkey wrench into the sale.
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Thanks
Barrister
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Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 23402
Experience: 14 years real estate, Realtor. Landlord 24+ years
Barrister and 6 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Barrister,


Do you know of any legal actions or law suit risks if I stop the sale of the house?


 

Expert:  Barrister replied 1 year ago.

Do you know of any legal actions or law suit risks if I stop the sale of the house?

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I don't see anything that could boomerang around and penalize you because you have a legitimate legal conflict that you are pursuing a remedy to by taking legal action. Now if you were doing this for malicious reasons (which would be incredibly hard to prove) the seller could countersue for "tortious interference with contract".

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But I don't see that as a possibility here since you have a real legal issue you are trying to resolve with the current owner.

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Thanks

Barrister

 

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