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Encroachments

michiganfenceYou have just discovered a sweet piece of land and the price seems right. You move forward and hire a surveyor only to discover the neighbor’s driveway cuts across the corner of your property. What do you do?

This type of problem occurs frequently. Over the years, we have found fences, driveways, sheds, garages and even houses that were over the property line. This happens when one is unsure of where the property line are actually located.

Recently, we discovered a small lakefront site. Being in an older plat with all small lots, it would be questionable if there were enough square feet of land to build a cabin and keep within the setbacks required by the township from the street, the water’s edge and the side yard setbacks. On top of that, add the requirements for the drain field and the reserve area and isolation distances from the neighbor’s well and drain field. We were not sure we could pull it off.

With closer inspection, it was discovered with careful planning, all of these requirements could be met. The only problem was that the neighbor’s driveway cut across the tip of the corner of the potential building site.

The neighbor had only owned his cabin for a few short years. When he purchased the cottage, his seller made it clear that the gravel drive was not actually on the property and understood that his gravel drive was across the corner of the neighbor’s property. It had been that way as far back as anyone could remember. He had enough room on his site to accommodate his drive and did not need the cut across.

The potential buyer of the site, wanting to make sure that there would be no problem, approached the user of the gravel drive and inquired of his willingness to relocate his drive. The gentleman was very gracious and acknowledged the encroachment. He informed the potential buyer, and future neighbor, that he would be willing to move it. After all, he had the room and there was very little cost, if any, to park on his own property.

Problem solved? No, the buyer being cautious approached his attorney for consul. The attorney advised having a document prepared and to be signed by all parties involved. A simple document was prepared. (I know it is hard to believe an attorney can do anything simple.) When the potential buyer presented the document to the neighbor, the neighbor refused to sign it and stated “My word is golden”. The buyer wisely did not move forward with the purchase.

Without the driveway being relocated on the rightful property, this lot cannot meet all the setbacks and requirements. Hence the lot is considered unbuildable and consequently of very little value. The property remains unbuilt. This is not an isolated case, we are aware of several similar situations.

A few lessons can be learned from this situation. When purchasing a piece of property, order a survey if there is not an existing one available. Secondly, all agreements regarding real estate should be in writing.

Written by Dave.