Setback requirements and encroachment

What is the name of your state? Massachusetts

Neighbor has patio, retaining wall and massive earth build-up which is 50% on my property, as indicated by concrete property markers placed in the earth. This structure is also in a drainage easement. The drainage easement is on the neighbor's property. The structure is over the property line by 15 or more feet.

The subject structure was built by the previous owner of the neighbor's property. The construction occurred before I owned the adjacent land.

Setback requirements are 10 feet as stated in site plans of subdivision and town zoning laws.

Neighbors have been notified verbally several years ago concerning the matter, but instead of trying to resolve it amicably, continue to behave in a manner that indicates they believe they own the land without question, i.e. they use the patio openly, put lawn furniture on my land, and maintain the landscaping far on my side of the property line surrounding the patio, over 20 feet over the line.

I want to force the neighbor to remove the patio and retaining wall and re-grade the earth to its original condition, at his cost. Can I do this? If so, what is the best way to proceed?

Also, can I force the neighbor to stay beyond the 10 foot setback, even though this setback concerns the neighbor's land?

Can I force the neighbor to stay out of the drainage easement as well, even though this drainage easement is on his side of the boundary?

The retaining wall was constructed from stone quaried from my land. I was told this by the person who built it, but this information I cannot prove. Can I force the neighbor to return the stone that lies on my property to me?

Bear in mind that I want to resolve this matter in the most amicable method as possible, because I will probably have to live with these people for a long time. However, I do not want to "give-up" the land.

If you want to resolve this matter in an amicable manner, give in and do nothing. If, however, you want to assert your property rights then have a current boundary survey completed then contact a local Real Estate attorney to send a Cease and Desist demand letter advising the neighbor that if the problem isn't cured within a certain timeframe, you will proceed with legal recourse.

Then follow through.

Hello and thank you very much for the reply.

The actions you recommend is probably the most expensive option available to me. Actually, they may be the only effective option. But before I do what you say, what do you think about the following less expensive options:

(1) Send the neighbor a letter asking them to remove the structure, with compelling arguments. Perhaps they will comply. Or, they may tell me to just remove the structure myself, in which case, I will probably do just that, and eat the cost of removal.

(2) Remove the structure myself from my own land, without notifying the neighbors, or hiring a contractor. After all, I own the land on which I will be working on.

None of these options will get the structure off the drainage easement or beyond the setback, but at least the structure will be off my land.

(1) Send the neighbor a letter asking them to remove the structure, with compelling arguments. Perhaps they will comply. Or, they may tell me to just remove the structure myself, in which case, I will probably do just that, and eat the cost of removal.

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And if you do the neighbor will sue you.

(2) Remove the structure myself from my own land, without notifying the neighbors, or hiring a contractor. After all, I own the land on which I will be working on.

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See above.

Sounds plausible. But, on what grounds could the neighbor sue me?

Trespassing
Destruction of private property
Conversion
Theft
etc.

Prove the land is yours and you can do with it what you want.

OK, we don't want to do any of that.

When I hire the surveyor, does he survey the entire property or just the structure in question?

How does the surveryor document the case for the court to decide, if we need to proceed in that direction. What do I need to ask the surveyor to prepare?

I contacted several surveyors about this matter several years ago. Most of them were clueless about what I was trying to do and why, or did not seem that they would be willing to help me resolve the matter by getting involved in a boundary dispute. I thought this was a little bit irritating, since I thought boundary determinations were what surveyors were intended to do.

Most of the surveyors wanted to sell me a package deal of locating the corners of the property, without regard to the structure in question. They want $800 - $1,000 for just this service. Anything additional, such as documentation, would cost more.

leguleian said:

OK, we don't want to do any of that.

When I hire the surveyor, does he survey the entire property or just the structure in question?

How does the surveryor document the case for the court to decide, if we need to proceed in that direction. What do I need to ask the surveyor to prepare?

I contacted several surveyors about this matter several years ago. Most of them were clueless about what I was trying to do and why, or did not seem that they would be willing to help me resolve the matter by getting involved in a boundary dispute. I thought this was a little bit irritating, since I thought boundary determinations were what surveyors were intended to do.

Most of the surveyors wanted to sell me a package deal of locating the corners of the property, without regard to the structure in question. They want $800 - $1,000 for just this service. Anything additional, such as documentation, would cost more.

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**A: you are correct about what the surveyors job entails.

leguleian said:

OK, we don't want to do any of that.

When I hire the surveyor, does he survey the entire property or just the structure in question?

You would need to ask the surveyor to survey the entire property AND locate the structures in question.

How does the surveryor document the case for the court to decide, if we need to proceed in that direction. What do I need to ask the surveyor to prepare?

Ask the surveyor to prepare a boundary survey plat showing encroachments on the property. Tell the surveyor up front that this is probably going to court, and that they may be asked to testify as an expert witness. Expect to pay the surveyor hourly for preparation and time in court.

I contacted several surveyors about this matter several years ago. Most of them were clueless about what I was trying to do and why, or did not seem that they would be willing to help me resolve the matter by getting involved in a boundary dispute. I thought this was a little bit irritating, since I thought boundary determinations were what surveyors were intended to do.

I am sorry, but I doubt they were "clueless" about what you were trying to do, surveyors deal with these types of disputes all the time. They may have been reluctant to take on the job because it is hard to get people to pay for all of the work that goes into a boundary dispute job.

Most of the surveyors wanted to sell me a package deal of locating the corners of the property, without regard to the structure in question. They want $800 - $1,000 for just this service. Anything additional, such as documentation, would cost more.

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When you get a boundary survey done, there is a lot of research that goes into it on the surveyors part. Much more than you ever see. Anything beyond the actual boundary survey would be additional, such as a drawing showing the encroachments, court time as an expert witness, locating the encroachments, etc. If it is important to you to get your property back you need a survey done by a surveyor licensed in your state. The surveyor may also be able to give you some names of real estate attorneys in your area that they have worked with.

I am not a lawyer, I have been in surveying for 15 years.

Finally, a response from a pro in the biz.

Hello again and thank you all for the valuable information.

Just a few more questions and thoughts.

If I must proceed with litigation, which is likely, can I recoup legal and surveyor's fees, in the event that I win the case? What kind of damages can I recoup?

Also, is there a possible of losing the case even if:

(1) The survey shows the encroachment clearly
(2) The surveyor provides expert testimony
(3) The deeds and records filed at the registry are clear and unquestionable
(4) There are no binding previous agreements concerning the encroachment
(5) There is no case for adverse possession

In other words, can a judge give the land to the encroacher even thought I have clear title to it? Under what conditions could this happen?