Ask Brian is a weekly column by Real Estate Expert Brian Kline. If you have questions on real estate investing, DIY, home buying/selling, or other housing inquiries please email your questions to [email protected].
Question from Ken in AL: Hello Brian, I’m in the Army Reserve. While I was on a four-month deployment, my neighbor built a tennis court diagonally and slightly across our shared property line. At the maximum, it extends about six feet onto my property. He’s not a bad guy and we’ve gotten along just fine over the eight years that we’ve been neighbors. I haven’t talked to him about it yet. I’m assuming that he either didn’t know where the property line is, or his contractor made a mistake. Both of us have a couple of acres of land. The six feet over the line wouldn’t be a big deal it wasn’t on the far corner of my landscaped backyard. I’d like to know my options before I have a conversation with him. I’m sure that tearing it out and moving it will be an expensive solution. I’m thinking about asking his permission to just use the court whenever I want to. What do you think I should do?
Answer: Hello Ken. Giving you access to the tennis court might be part of the solution, but it shouldn’t be the entire solution. These types of things happen more often than you might think. My neighbor at the first house that I bought eyeballed a telephone pole on the street behind us and another telephone pole on our street. Telephone poles are not boundary markers. He used an imaginary line between the telephone poles to build a fence between the properties from our backyards all the way to the street in our front yards. He crossed five feet into my gravel driveway so that I could no longer park two cars side by side. He wouldn’t move the fence, so I had a survey done. We never went to court, but he agreed to move the fence and pay for the survey. We were barely on speaking terms after that. It was my first house and I bought a bigger house a year later.
My point is that violated property lines can cause friendly neighbors to become a lot less friendly. You still might be able to use your neighbor’s tennis court, but you want to legally document the encroachment. Laws vary in different states but almost always the person encroaching on another’s property gains legal ownership at some point in time. In Washington State, it’s generally after 11 years but it could be 8, 9, 10, or some other number of years in Alabama. There can also be variations in the laws such as whether you knew there was an encroachment but didn’t take any action.
Ken, you should act shortly after you became aware of the encroachment. You might want to talk to a real estate attorney, but a survey is going to be needed. Maybe you have an old survey that you can show the neighbor before talking to an attorney. Or you could begin by having a new survey done. Whatever you do, you want to legally document a solution in the very near future.
Not being a real estate attorney, I’m thinking you have three options available. One is telling him to remove the tennis court from your property and rebuild on his own property if he wants to. Of course, that is going to be an expensive solution. Another solution is for you to sell that small piece of property to him. You want to know about any setback requirements from your property that need to be included. If you choose this solution, you’re going to need a new survey and real estate purchase contract. Have everything documented and record the changes where titles are legally recorded in your county. A third option could be granting your neighbor an easement onto your property. An easement might only last as long as the tennis court exists, and it might not have to be transferable to a new owner if your neighbor sells the property. Again, have it all legally recorded. Also, your neighbor should pay all costs involved – attorney, survey, recording fees, etc.
An easement could be the solution you are looking for that includes you having access to use his tennis court when you want to. That easement should include all the people entitled to use the court. It could be just you and your family, or it could include your guests. I suppose it could even include allowing you to hold an annual tennis tournament if that is something that you want.
With his tennis court currently on your property, something else you want to think about is your liability. What happens if a tennis player breaks an arm on your property? Are you going to allow your neighbor to hold tennis tournaments on your property? What happens if you sell your property? Will an easement lower your property value? Will the new owner of your property be allowed to use the tennis court?
Ken, what you need to realize right away and explain to your neighbor is that there are serious consequences to the tennis court being partially on your property and that action needs to be taken right away to resolve the issue. If no action is taken, your neighbor is going to legally own that part of your property one day soon.
Readers, I’m sure I left something important out. Please add your comments.
Our weekly Ask Brian column welcomes questions from readers of all experience levels with residential real estate. Please email your questions or inquiries to [email protected].