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New Driveway May Be On Neighbor's Lot


By Ilyce R. Glink and Samuel J. Tamkin

Summary: After building a new home, an owner discovers the driveway may be on the neighbor's lot. Ilyce and Sam discuss surveys, easements and builders contract.

Q: We purchased a vacant lot and signed an agreement to have a home built on it. We moved into the home and later when the vacant lot next to ours sold, the neighbor’s surveyors found that part of our driveway, several sprinkler heads and a palm tree were on the neighboring lot.
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I contacted our builder and received a message back stating that the builder had inspected our property and found the sprinklers and palm tree were on the wrong property and would be moved, but the driveway was fine.

My builder’s landscapers came and moved the palm tree and the sprinkler heads. But a couple of days ago I received a phone call from the owner of the adjacent property telling me that his sale fell through because of my driveway being on his property. He claims that he could have made a large profit on the land.

I think the builder is ignoring my requests to have the driveway moved because it’s expensive and time-consuming, but I’m afraid my neighbor could sue me. How long do you think I should have to wait until I take action against the builder?

A: The first thing you need to do is determine how far your driveway extends into your neighbor’s property. When you constructed your home, you should have, and the local building department probably required or should have required, a current survey of the property.

That survey should have marked the corners of your lot. Generally, surveyors place wooden stakes on the corner of a property with a small colored flag. If your lot was surveyed and its corners staked, you should have been able to determine where your property line was and should have built within your property line.

You should also double check to make sure that the information you were given by your neighbor’s surveyor was accurate.

If your neighbor’s information is accurate and if the driveway encroaches into the neighbor’s property by a couple of feet or less, you can discuss with your neighbor having an easement over his land to allow your continued use of the driveway over his property. The neighbor may want to be paid a small fee for this right and you and he can negotiate the fee.

A real estate attorney can assist you in drafting the easement and having it recorded against your neighbor’s property.

However, if the driveway extends far into the neighbor’s property and he is unwilling to let you keep it there, you will have to place it all on your property at your expense.

If you know that the cost of fixing this mistake will be yours, you will have to determine who caused the mistake. Was it your original surveyor that improperly surveyed your property? Was it the driveway subcontractor that improperly placed the driveway on your neighbor’s property? Or was it your builder’s responsibility to insure the accuracy of the placement of the improvements?

You may need to review your contract with your builder to determine who was responsible for the proper location of the improvements on your property. Some construction contracts specifically place the burden of obtaining a survey for the property on the homeowner. If you decided not to get a survey you would have to bear the cost of moving the driveway.

You indicated in your letter that the builder decided to move the landscaping onto your property. He may have done it to create good will even if he doesn’t believe he caused the mistake. On the other hand, the builder may have fixed that problem knowing he was responsible for the mistake, and hoping the easy landscaping fix would be good enough.

If the builder is responsible or if you can’t determine the responsibility, you should consult with a litigation attorney that has had experience in construction related issues about your situation.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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