If neighbor's deck is over line, an easement might ease things


April 07, 2002

I recently received a letter from a woman in Ellicott City who has a problem with a next-door neighbor.

It seems that the neighbor erected a deck in the back yard that encroached onto her property by less than a foot. However, she wrote, since townhouse back yards are small to begin with, "even a few inches feels like an invasion of property." And she said there was no permission given.

Therefore, she wants to know the possible ramifications now and when she goes to sell the house, if a portion of his deck remains on the property.

Even this small encroachment violates your property rights. If you took your neighbor to court, a judge probably would order him to remove the deck from your back yard.

If you do nothing, and the encroachment continues without interruption for at least 20 years, your neighbor could secure title to a portion of your land by adverse possession. So, you and anyone who acquires your property have a long 20-year "window" in which to force removal of the deck.

Your neighbor may have to face the problem sooner if selling the property. The purchaser or lender may obtain a location survey, which should disclose the fact that part of the deck is built on your land. This title defect may affect the value of your neighbor's property, since the owner risks having to modify the deck or remove it entirely.

The legal solution to this encroachment is for you to grant your neighbor permission to maintain a portion of the deck on your land.

This permission would be written in a formal easement or license agreement that is recorded in the county land records, where it is legal notice to all future owners of both properties. But you cannot be required to grant permission. It's strictly up to you.

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