Is it normal/realistic to ask for compensation for boundry adjustment due to encroachment

I forget what the law is called, but basically, after doing a survey we discovered that a neighbor has been encroaching (almost 3000 square feet) over our property and by law, the judge will give them the land because they have used it so long and no one disputed it.

The question is: We cant complete the survey (set markers) until we resolve this and so can I ask the other party to compensate me for the land? Not sure what a court would uphold if we went the hard way (to court), or if this ability to be compensated varies by state.

If it is typical to be compensated, I planned to value the land (excluding buildings) according to assessors office and then multiply that value by the square footage to be given to him.

I think consultation with a real estate attorney would be time well spent for this issue.

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This looks like a lawyer’s dream case. Here’s some input:

  1. Neither of you have clear title now;
  2. You’re encroaching neighbor wouldn’t have clear title unless he sued and was declared the owner in court. To win, the neighbor would have to prove they had obvious open use of the property for 17 years or more (in most states). That can be harder to prove than you’d think. In these cases, absent some truly significant real estate value, all associated with the lawsuit would have to pay their lawyers - up front most likely;
  3. Once there is a settlement or judgment, there would need to be a new survey and the accurate new ownership properly filed of record;
  4. Presuming you have a reasonable neighbor who has any incentive to clear the title, you can reasonably ask for cash in exchange for offering a clear deed to this disputed land. The neighbor would weigh your cash offer vs the cost to sue for clear title, presuming there is any need by the neighbor to clear title and that the neighbor is rational - many aren’t.

In short, it’s worth either whatever you and your neighbor agree it is, or the value of the land less the cost to clear title.

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Thanks Kurt. You really seem to know your stuff on this.

Apparently, the neighbors house is on our property, so the only solution would be the compensation approach, essentially selling off that land to the neighbor. So, him proving hes encroached for 20 years wouldnt matter, which is why I think negotiation is the only option.

My survey guys were not able to put in the markers because the neighbor would not allow it.
So, I guess the other option is to get the sheriff to accompany them to put them in., but this would still require the neighbor to approve the changes. IF neighbor is not willing to cooperate, then court sounds like only option.

I just not sure we could get a loan without a survey, and there has never been a survey done on the property.

What a mess. The issue will be title insurance would have to exclude the encroachment, which would likely mean a bank wouldn’t make a loan on it. Presuming your neighbor is rational, I’d have a talk with them about what to do. They’ll have the exact same issue you do if they ever want to sell - they won’t have clear title either. Maybe an offer of some partial compensation to you and splitting the cost of a surveyor would make the most sense. Good luck.

The neighbor also lives in a MH, is prob in his 80’s (so likely will finish his life out there), and threatened the surveyors, previous park managers, etc… Clearly no interest nor need in solving anything like this.

Quite certain he’s not going to offer a dollar for anything, so I sent him a letter (registered mail) explaining the situation, and the proposed remedy (he pays me $1,500), so if he refuses or ignores, then I can say:

  1. Seems that court is the only way to resolve this, so he may decide to pay the 1500,
  2. I skip everything, and just give him the land he’s been encroaching on for free.

Are those pretty much my options at this point?

Practically, I think so. If the encroaching neighbor doesn’t respond, weigh your potential gain in value against the expected legal costs - and your time dealing with an 80 + year old with little to lose and who isn’t capable of changing their position.

At least, by sending him a letter, you are stopping / limiting that owner’s ability to claim the property by adverse possession - one of which the legal elements is that the property was uncontested/ the owner of the land never complained.

I think you would lose this case due to the law of adverse possession – but there are several criteria and it’s based on the laws of your state. Was there an old survey done on this land or a title company involved in that sale that you can sue if they don’t fix it? Has this land never been sold before and a loan placed on it? I have seen cases like this in the past where it was a survey or title company mistake and was then fixed through their insurance.

Otherwise, I think the best thing to do is to give the guy the land, get it all properly papered so this issue never comes up again, and move on. The odds of you getting that guy to pay you are zero. The sense of litigating this issue ($25,000 minimum just to show up in court) is zero. The chances of you winning that case are probably near zero. And then there’s the problem of you losing 3 to 4 years of time if all appeals are granted no matter how the original case ends up. Not to mention the guy then suing you for his legal fees.

Kurt is right that it’s in the other guy’s best interest to get this resolved as much as it is in yours. However, he has no time pressure as he’s 80 and not worried about material things. So you’ll have to be the quarterback to get this fixed.

No survey has ever been done.

State is ID, the last of the wild west.

" title company involved in that sale that you can sue if they don’t fix it" - Not sure which sale you mean, but if you mean my current sale, bought the park with cash, so survey was not necessary, but planned to do a cash out.

Anyways, going to contact assessors office and find out the history of sales on the land, but not sure that matters since survey was never done, so I guess people just guessed where the lines were supposed to be.

Another option I just thought of:

  1. Get the police to accompany the survey company to place markers on new boundaries.

  2. Or, just leave markers where they are, as long as lender does not need survey done (apparently many dont). Unfortunately, I paid a lot to do the survey which may have been unnecessary. If the other guy wants to sell his home, he can pay for the updated survey.