Ask the Real Estate Lawyer - August 23, 2009
By Ilyce Glink and Samuel J. Tamkin

Q: I purchased a property around 10 years ago in Chicago. A neighbor has a bay window that encroaches onto our property by 6 inches. There is a cross easement between the two properties to allow access to the rear.

Can we have the owners remove the window if it was built within a certain period of time (less than 20 years ago)? If the owner wants to make improvements to the bay (e.g., put new siding on it), is there anything we can do at that time to remove the encroachment?

A: Is there a specific reason you would want your neighbor's bay window removed? You have lived with it that way for 10 years and it has been there for almost 20 years. Did you or your former owners know that the neighbor was building the home with the bay window that encroached and did not object?

Let's go back even further. When you bought the home, did you know that the bay window encroached onto your property?

We have more questions than answers for you on this issue. There are instances where surveyors make mistakes and show encroachments that don't really exist. Sam has been involved in several cases in which a buyer hired a surveyor, who discovered an encroachment -- yet at a later date, when it came time to sell the property, a different surveyor could find no evidence of the encroachment, even though nothing had been done to change the property.

You would need to review your survey to determine if the encroachment is depicted, and you might even need to verify the size of the bay window encroachment. Surveyors have different methods of preparing their surveys. Some methods are more accurate than others. While all of their methods tend to be quite accurate, surveyors tend to be more careful when they prepare their surveys in accordance with ALTA/ACSM standards (American Land Title Association and National Society of Professional Surveyors).

If your survey was prepared in accordance with those standards, you should have accurate dimensions of the bay window encroachment. If your survey does not have a certification that states that it was prepared in accordance with those standards, you might need to verify the encroachment and determine the exact measurements before you tell your neighbor that you want him to take down part of his home.

In general, a homeowner does have the right to have a neighbor remove an encroachment. But the law generally would not like to give you that right if you sat passively by while improvements were being made and did not inform the neighbor of the problem.

Also, you say that you and your neighbor have an agreement regarding access to the back of the property. Does that agreement say anything about the bay window? In some urban areas, homes have bay windows on the second and third floors, but instead of a first-floor bay window, there is a walkway to allow access alongside the home.

Now, if you have verified that the encroachment exists and its exact dimensions, and you verify that there is no other documentation that permits the encroachment onto your land, and there is no way any prior owner could be said to have permitted the encroachment nor agreed to the encroachment, you might have a right to force the removal of part of the bay window.

In some parts of the country, you can't complain about these encroachments if a certain amount of time has passed. The law doesn't like neighbors who wait around forever before asking for the removal of a structure or a change to a property. Usually, the law prefers to have owners deal with these issues as soon as possible after the construction is completed or within a certain time period after it became known that there was a problem. In your case, it might be that too much time has passed for you to make that claim.

As for replacing the siding, your neighbor may have the right to do that. Some states and municipalities permit homeowners to go onto the neighbor's property if necessary to make repairs. In such cases, they might have to do the work at certain times and avoid damaging the neighbor's property, but they have the right to fix their home. It's in the city's best interest to allow homeowners to keep their homes in good repair.

So if the bay window is there to stay, you might not be able to prevent the neighbor from making repairs to the window. But you will be able to prevent the neighbor from making the encroachment larger. That is, the neighbor cannot take advantage of the situation to worsen the encroachment onto your property.

If you want to take the matter to the next level, take the survey along with your other documents from the closing to a real estate attorney and discuss this issue further. You may discover that the cost to proceed on this issue outweighs any benefits. If you sue, the judge hearing the case may want to know how you have been harmed by the bay window and weigh that harm against the harm and damage to your neighbor's home in removing 6 inches off his bay window.

One last item to consider: Under some states' laws, your neighbor might have obtained an easement over your property simply by virtue of having the bay window where it is for so long.

(Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink's latest book is "100 Questions Every First-Time Home Buyer Should Ask: With Answers from Top Brokers from Around the Country" If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce's Web site, www.thinkglink.com.)

 

 

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Samuel J. Tamkin is a Chicago-based real estate attorney.

Ilyce R. Glink's latest ebooks are "Save Your House From Foreclosure" and "The Clutter Collector: How to Get Rid of Clutter Everywhere In Your House," which are available at her Web site, www.thinkglink.com. If you have questions, you can call her radio show toll-free (800-972-8255) any Sunday, from 11 am-1 pm EST. You can also write to Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022

 

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