Q: When your neighbor won't sign an enroachment because they are selling the house?
We purchased a home a year ago and promptly had a survey completed. The survey shows that the neighbor has built a patio and driveway on our property. We were going to speak to her about it and sign a contract allowing her use for $1 but not allow any changes to the patio or driveway to be made. Before we could speak to her she put her house up for sale.
I have been trying to get in touch with her through her realtor (2 calls over 2 weeks) and she will not respond to us. Our surveyor was going to write up an agreement for us both to sign.
Since she will not work with us. I am unsure if the next step is getting a plat and then recording it with the city? Or is it a quiet title and then court? I am frustrated that she is not communicating with us and positive that neither she nor the realtor are disclosing this situation since all the realtor kept saying was this will be harmful to her selling the house.
A: More than likely you and your predecessors in interest have Acquiesed to the neighbor's improvements being the actual Boundary. However if they will not agree to a new Boundary Line (drafted by a competent attorney) then you should file suit for Trespass Damages and to Enjoin Further Use of your real property. The neighbor's proper response is to deny trespass and counterclaim to Determine a Boundary. You better start talking to your predecessors in title to tack time without an encroachment, and you may wish to sue your Deed Grantors for Breach of Warranty of Title. Hire a competent attorney who will first conduct title searches of both parcels.
A: If you file any type of suit, draft and file a Notice Lis Pendens. Ask the Clerk to issue it and then record it at the Register of Deeds. That puts a very large cloud on her title, and should slow down any sale. She should then want to settle the Boundary Dispute, which may even be you giving her the exact part of your lot which has been encroached upon. Both of your parcels now have clouds on their titles.
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