Ask the Real Estate Lawyer: Real Estate Law Q&A
REM # LAW 772
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A neighbor builds a retaining wall
that encroaches onto the homeowner’s property. Now, the neighbor wants
an easement to cover the encroachment. Should the homeowner tear down the retaining
Q: My neighbor recently extended a retaining wall for a driveway and encroached
upon our property by a distance of 12 inches by 9 feet. We had our property
surveyed 3 weeks after the construction and discovered this.
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Our neighbor proposes that we settle the problem by providing him with an easement
for this use. What would be the implications in this for us?
A: The issue you face is quite common. Frequently, neighbors do not know the
exact location of their lot lines. Other times, contractors doing work for the
homeowners fail to follow the property lines when making improvements to homes.
The most common problem between neighbors has to do with the installation of
fences. Depending on the configuration of the lots, bushes, trees, other obstacles
and the location of the home on each lot, neighbors frequently pick a line that
usually ends up on one neighbor’s side of the property by a couple of
inches to a couple of feet.
If your neighbor had come to you to ask whether he could install the retaining
wall on part of your property, would you have agreed? If you would have been
fine with his request, you have nothing to lose with giving him the easement.
If you would have objected, you now have a decision to make.
The easement your neighbor requests will give them the right to keep the retaining
wall on your property without your ability to have them remove it in the future.
If you’re planning to sell your home, the easement would also make sure
that your buyer couldn’t require your neighbor to remove the wall.
If you go the easement route, you need to make sure that there are provisions
in the agreement that state that the neighbor is required to maintain the wall
and pay all costs associated with the wall. You could have a provision in the
document that would require your neighbor to remove the wall in the future if
it needs replacement.
A real estate attorney can assist you in the drafting of the easement agreement.
Your neighbor should pay all of the expenses having to do with preparing the
easement agreement and having the document recorded.
One issue that you have to consider is the impact the wall has on your property.
If the impact is not noticeable, there may have been no harm done by your neighbor.
If your lot is narrow and the impact of the wall is large, and having the wall
could alter the value of your property, you’ll need to decide how to proceed
with your neighbor.
Now, let’s look at the other side. Assuming that you would not have allowed
your neighbor to build the retaining wall on your property, even if your neighbor
had good reasons to do it that way, you can now require the neighbor to remove
the wall from your property or request that he pay you a lump sum for the privilege
of having the wall on your property.
You can even structure the easement agreement to have your neighbor pay you
an annual fee to keep the wall on your property. If he innocently built the
wall on your property, you have him in a rough spot. It’s probably would
not be very neighborly of you to demand payment from him or to have him remove
the wall, particularly if it does not impact your home, but you might have the
right to do it.
You have to decide what you want to do. If your neighbor made an innocent mistake,
and you charge him for the easement or make him take down the retaining wall,
he could be a less-than-friendly neighbor for many years to come.
On the other hand, if your neighbor just decided to build the wall and didn’t
even consider whether he would be on your property, and you’re not all
that neighborly to begin with, you may make a different decision.
For more information on your legal rights or to draft the easement agreement,
consult a real estate attorney.
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 www.thinkglink.com