This is it! You have found THE ONE…the home of your dreams, and while a survey wasn’t required by your lender, you took the advice of the professionals at Highland Title + Escrow and had one done anyway. This is possibly the biggest purchase of your life so it’s important to know where your property lines are. During the survey, it was discovered that your neighbor’s driveway is on your property. What’s next?
Don’t panic! Some of the most common survey issues are driveways and fences, and these are usually close to or on the property lines. Fences are often built around trees or rocks and tend to shift and settle over time, but things are a little different with a driveway.
Before moving forward, ask yourself this: How big is this problem to you as the property owner, and would you like it resolved? If you bought 10 acres of land with six inches being taken away by your neighbor’s driveway, it’s probably not worth pursuing. However, if you bought a townhouse with inches between your home and the next and five feet is taken up by the driveway, it could make all of the difference in the world.
This is a title issue, and it could affect the ownership and marketability of the title to the property, but you have options.
Option 1 – Leave the encroachment as is. As the buyer, you may decide to leave a smaller encroachment as is and purchase the property. There are many things to consider, but primarily, you may just decide it isn’t that big of a deal.
Option 2 – Resolve it before you buy the property. You do have the right to go to the seller, ask them to correct the encroachment and refuse to buy until it’s remedied. It then becomes the seller’s responsibility to get it resolved with the neighbor before settlement. It could be as simple as moving some gravel off of your property or as drastic as digging up the whole driveway, but if it is a big concern, get it taken care of before you buy. No one wants to meet their neighbors for the first time with, “Nice to meet you; your driveway is on my property.”
Option 3 – Give your neighbor a license. That’s right. You can buy the property with the understanding that the encroachment is there. After taking ownership, you can give your neighbor a letter acknowledging that the driveway is on your property and stating that you have given them a license for the encroachment to remain as is. Should your neighbor take advantage, the license is revocable, but the license will help you avoid adverse possession. (Keep reading.)
Bonus Option – Give them an easement. This is a very unique situation. Should the driveway go all the way across your property for the neighbor to enter his property, your neighbor and you could settle on an easement. Hopefully, an easement is already in place before closing, but if not, it could be legally arranged.
Really, the concern for you as the buyer is protecting yourself from your neighbor’s hostile takeover or adverse possession which is when someone is encroaching on your property and tries to take ownership of said property.
Several elements have to fall in line for adverse possession to be considered in court, such as that person continuously using the property, and it must be very obvious that’s the case. However, these elements must take place over a period of fifteen years, and adverse possession can’t be taken if you have given your neighbor license to use the property. So ultimately, the bigger the encroachment, the more something needs to be done about it to avoid future conflict.
We hope this information can help with future home buying settlements and transactions. If you have more questions, you can always contact us, and we’ll be happy to help!