It’s every property owner’s worst nightmare: you purchased a spacious residence in the countryside, moved in with your family, and before you know it, you see your neighbor Harry hammering a stake into the ground to construct the stage for “HarryStock,” an annual live band event he holds every year in his backyard (and, apparently, yours).
It appears to you that the first two stakes he’s set down fall squarely on your side of the property line that divides the two properties. So what steps can and should you take to slow down or stop Harry? Do you have recourse, or will you be relegated to the status of an unwitting HarryStock concertgoer?
Talk to your neighbor as soon as you notice the encroachment.
Whether your neighbor has seen fit to construct a fence, a driveway, a basketball hoop or a live band stage (or any other structure that you have not consented to) in an area that you contend is part of your property, it is important to speak to your neighbor right away after noticing the encroachment. The longer you wait to raise the issue, the more difficult it could be to rectify the matter, either formally or informally.
As you speak to your neighbor, it is important to listen to their position. This does not mean necessarily acknowledging your neighbor’s position as correct, but it does mean listening respectfully.
Photograph the encroaching activity.
If it is your neighbor who you believe to be encroaching on your property (rather than vice versa), you’ll want to make an effort to photograph the conduct that you believe encroaches on your property.
It is important to utilize discretion in the act of photographing the encroaching activity. There is no need to approach the person at a close distance in an effort to create some type of confrontation. It is sufficient if you can take the photo from your residence (out of a window, for example), and then later go to the spot of the activity and take separate photos as necessary.
Consult the county plat records.
In virtually all states, individual counties are required to maintain plat maps showing the current ownership of every tract of land in the county. This means that the county will typically maintain these maps for the individual tracts of land, including yours.
Property boundaries on plats are indicated by bearing and distance (such as N 47 00 00 W). Consulting the county plat records can help you confirm or deny your belief that the disputed area in question is in fact part of your property. One word of caution: if you do not have experience in interpreting plats, and bearing and distance designations, you may need to enlist the services of a surveyor to properly interpret the plat.
Build a fence.
If the dispute threatens a vital interest to you, your family or your business, you could consider being proactive and constructing a fence delineating that boundary that you believe to constitute the legal boundary between the two properties. This is an aggressive maneuver, and one which could come with a cost if it turns out that you did not correctly ascertain the correct boundary, and are later ordered to remove the fence and/or compensate your neighbor for any damages caused by the erroneous construction. However, it can be the right move if you are seeking to prevent an encroachment on the part of your neighbor that you believe crosses into your property, and that could have far-reaching repercussions.
Conduct a survey.
Upon consulting the county plat records and/or your own records from your purchase of the subject property, you might find that the last survey for the property was created using outdated descriptions that can no longer be utilized to ascertain the actual boundary of the property. For example, defining the boundary as falling, “52 feet to the west of the oak tree,” when the oak tree has long since been chopped down, with the stump removed.
Costs to obtain a new survey can range from $500 to thousands of dollars. You could expect to pay more for the survey if the tract has not been surveyed for many years, or if there are multiple existing survey maps for the land that conflict with each other.
Send a cease and desist letter via a lawyer.
If you contact an attorney about the situation, one course of action that he or she may propose is to send a cease and desist letter to your neighbor requesting in writing, and with the proper verbiage, that your neighbor cease and desist from the activity that encroaches on your property. This would be an escalation of the situation and you would have to feel comfortable with the consequences of such an action—including, potentially, that your neighbor retains his/her own attorney and sues you, potentially under a quiet title theory (see below).
The drafting of a cease and desist letter by an attorney has strategic value if the encroachment threatens to disturb your peaceable enjoyment of your property, or to materially reduce the value of your property.
Enlist a mediator.
With or without the assistance of a lawyer, you could choose to enlist the services of a private mediator. Mediators (or arbitrators) are available for hire through private associations in many cities, though many counties in many states offer lists of attorneys who will mediate disputes at a reduced fee. You can contact your local county civil court clerk to inquire whether your county maintains such a program.
Initiate a quiet title lawsuit.
A lawsuit to a quiet title seeks a declaration that the land in question belongs to you, and thus "quiets" any competing claims to title of the property. If your neighbor has been occupying a portion of your property, the action can take the form of an “ejectment,” whereby you seek to recover possession of the subject property.
Initiate a lawsuit for nuisance.
A remaining legal option is to sue your neighbor for nuisance. The core element of a tort action for nuisance is an interference by a defendant with a person's enjoyment and use of his/her land.
This would encompass Harry’s erection of his HarryStock band stage. The cause of action is flexible and can encompass a number of types of activity ranging from vibrations that damage a house; polluting the soil or an underground water supply; or emitting foul odors, smoke, dust, noxious gases, loud noises, high temperatures or excessive light (which would fit our facts if Harry used an oscillating spotlight to promote HarryStock).
The above information is neither legal advice nor a substitute for reference to applicable state law, and instead provides general information.