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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101594
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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10 years ago my neighbor and I purchased 20 acres of timber

Customer Question

10 years ago my neighbor and I purchased 20 acres of timber ground which was previously all rented. To save money we chose not to survey the ground as the lines had been grandfathered in for over 40 years and there was no prior dispute in any years past. His 10acres has a cabin as does ours. I recently purchased an additional 1.5 acres to the north to put a new cabin in. Well I had to get that surveyed and the result was that our original lines in 2007 were off by 24 feet. My neighbor is now trying to move on to my property and taking part of my ground based on his line that he set back in 2007. Is there anything I can do to stop him?
Submitted: 5 months ago.
Category: Real Estate Law
Expert:  Ely replied 5 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Can you please tell me:

1) What state is this in?

2) You mean he is attempting to take more than just his cabin (which is partially on your property)?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 5 months ago.
The state is IL
The property is split in to two rectangles. When purchased in 2007, we knew part of my driveway would be in his rectangle. We agreed that he would let us keep our driveway there if we respected the line he set down the middle of the propert with stakes in the ground. His line followed the path along the edge of the ground we maintained and the ground he maintained. This was an effort proposed by him to save money on surveying the ground to know the exact line. Just recently we bought an additional 1.5acres to the north from an unrelated party. However, in doing so we had to have the area surveyed. As a result we found out our neighbors line he set in 2007 was off by 24 ft. Thus, he has now moved his stakes 24ft inward on our ground that we have maintained.
Expert:  Ely replied 5 months ago.
Okay. Please allow me 5 minutes or so to type out my answer. Thanks!
Customer: replied 5 months ago.
Thank you
Expert:  Ely replied 5 months ago.
Whatever the two of you agreed upon verbally is not possible to enforce. This is because agreements as to property must be in writing, per 740 ILCS 80.
This means that he's had his cabin on your property for some time.
But just because he has, does not mean that:
1) He can claim more land, or
2) He can claim an easement (around the cabin, for use).
The only way that he can claim an easement is if he goes to court under a special QUIET TITLE action, and proves an easement by prescription.
"An easement is created by such use of land for the period of prescription as would be privileged as if an easement existed, provided the use is (1) adverse, and (2) for the period of prescription, continuous and uninterrupted." Restatement of Property, section 457, quoted by Roller v. Logan Landfill, Inc., 307 NE 2d 424 - Ill: Appellate Court, 4th Dist. 1974.
NOTE that it states ADVERSE, meaning without permission by the actual owner of the land (i.e. you). It does not matter that you thought he owned the land. In fact, the mistake is in your favor, because had he been doing this without permission, then the prescription easement is more likely to stick.
Therefore, he is arguably trespassing/encroaching on the land, and may be mandated by judgment to move back to what is HIS land.
I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.
Customer: replied 5 months ago.
His cabin was on his side on the ground (his 10 acre rectangle - east side) Our 10 acres is on the west side of this 20 acre square. We recently learned that his Far East side of his rectangle is over another property line by 24ft. Thus, he is trying to move his rectangle 24ft further to the west to make up for the ground he lost due to the inaccuracy of his original understanding of the "line" on the east side of the 20 acres. Since 2007, he has maintain his 10 acre rectangle and we have maintained ours with a mutual understanding that the line in the middle that he set was the agreed upon line. Knowing that his original east side line is off, he in moving the middle line into our west side rectangle. We are trying to see if there is anything we can do to keep him from taking 24ft essentially of our west side
Expert:  Ely replied 5 months ago.
Well... it does not matter what the parties thought before the proper survey.
Once the proper survey took place, now both of you know. He cannot take any of your property and has to move everything back on his. Period. Even it he is taking a financial loss after having put in money and sweat equity into the property.
But likewise for you, if anything you have is on his property.
I hope this makes sense...?
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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