Chicago - 30 year property line encroachment (attorney, house, transfer)

[lauriet]

We bought our house 30 years ago and the title deed stated that our property line encroached on the neighbor's property by 1' in places. No previous owners of that property have ever said anything about it.

Two years ago a developer bought the property, totally rehabbed it, tried to and could not sell it so he moved his family in.

He just had a survey done and wants to tear down the existing fence (also older than 30 years) and put up a new fence 1' into my garden where his survey shows his property line.

I want to know if the encroachment can be considered my property after all these years? The 1979 legal papers are honest that there is this encroachment? And would this have shown up in legal papers when he bought the property?

I need both a legal opinion and where I would find this in writing for Chicago, Illinois.

Thanks for the help

[cdc3217]

This is not a super-helpful response, but I'm also interested in the answer.

My yard has had a small chunk of my neighbor's property fenced in on our side due to a tree or electrical line or some odd reason. I was told informally that after like 20 years it supposedly defaults to our property, but that just seemed so odd to me. How would the deed document a change like that?

[mendelman]

I'm not a property attorney, but you two may have a claim under the concept of "adverse possession". Many states still allow people to claim ownership of property not theirs if one can clearly and defensibly show that one has been using and maintaining said property for a certain period of time. I'm not sure whether this is allowed in Illinois, though.

Keep in mind it is anything but "automatic". You usually have to have very good evidencein court showing your occupancy and use of said property and the other owner's obvious and continued non-use.

Good luck...it may not really be worth it though - the court/legal costs would certainly outweigh the benefit of 1 foot of land.

In the OP's case, you could also get a survey of your property done to see how it compares to your neighbors new one.

[UnderTheLiveOaks]

I'm also not a property attorney, but had a friend go through something like this recently. Do you have any documentation, in either case, of the previous owners allowing construction anywhere? Are there any easements in place? If there are, you may be just fine.

[chet everett]

Not just some states, but the one that matters -- Illinois: Illinois adverse possession statute

The complication is pretty straightforward here -- encroaching party has knowledge of it, encroached on party SHOULD have known about it. Best advice if you want your lot expanded is to hire a CONNECTED law firm, like Madigan or Burke, pay 'em their fee and POOF your lot now includes your garden as this is CHICAGO my friend.

If you hire some shmoe you will not prevail unless your neighbor hires a worse shmoe...

Why take the risk, hire the connected firm.

Of course if don't mind having the developer putting his fence through your garden then just roll over for 'em...

[Drover]

First things first: get a lawyer. You need an injunction right now to prevent the developer from tearing your fence down. Second, you have a pretty good case that the property is now effectively yours via adverse possession. You will want to establish quiet title over the land in question so that your property title is not clouded, which could affect marketability of your property in the future.

Or, if it's not worth it, let them tear the fence down and move it; or perhaps offer to sell it to them for some nominal fee.

[laurelathome]

I'm the encroached upon party in an active case. I've searched the internet for several years. I'm concerned that variations in laws and court-decisions from state-to-state and municipality-to-municipality violate the most fundamental principle of democracy - the equal rights of all people to their property and persons. A summary of what I've learned from searching is: Adverse possession doesn't apply because (1) the 30-year property owner didn't pay property taxes on the encroached area of her neighbor's lot; (2) the dominant factor is the real lot line as described in the legal description on the deed; (3) a court would be granting eminent domain to a private entity not qualified for eminent domain to convert the encroachment to an adverse possession; (4) backyard disputes should be and are outside the scope of adverse possession law; and (5) the assumption for a small strip of land on a small urban lot would be that the owner of the encroached-upon property was a kind and neighborly person who gave tacit consent for the shared rather than exclusive use of the land. The encroacher doesn't have a prescriptive easement because (1) the notation on the deed is of an encroachment and not of an easement; and (2) a court can't convert the encroachment to a prescriptive easement because it doesn't involve any of the usual and compelling purposes for easements, such as a necessary right-of-way. In some of these disputes, an encroacher might argue that property values will decrease if he can't continue his unlawful use of his neighbor's property. The property-values argument puts officers of the court in a bind. I think most or all of them have to recluse themselves because they have a personal financial interest in property values. They own property and many are paid out of property tax revenues calculated on property values. Madigan and Burke are especially vulnerable to the property values problem.

[laurelathome]

The main problem is that the laws and precedents were developed for farmland by ancient rural societies. They don't transfer well to small urban lots and the much greater diversity of problem people with personality disorders who inhabit them.

[CSD610]

Originally Posted by laurelathome

I'm the encroached upon party in an active case. I've searched the internet for several years. I'm concerned that variations in laws and court-decisions from state-to-state and municipality-to-municipality violate the most fundamental principle of democracy - the equal rights of all people to their property and persons. A summary of what I've learned from searching is: Adverse possession doesn't apply because (1) the 30-year property owner didn't pay property taxes on the encroached area of her neighbor's lot; (2) the dominant factor is the real lot line as described in the legal description on the deed; (3) a court would be granting eminent domain to a private entity not qualified for eminent domain to convert the encroachment to an adverse possession; (4) backyard disputes should be and are outside the scope of adverse possession law; and (5) the assumption for a small strip of land on a small urban lot would be that the owner of the encroached-upon property was a kind and neighborly person who gave tacit consent for the shared rather than exclusive use of the land. The encroacher doesn't have a prescriptive easement because (1) the notation on the deed is of an encroachment and not of an easement; and (2) a court can't convert the encroachment to a prescriptive easement because it doesn't involve any of the usual and compelling purposes for easements, such as a necessary right-of-way. In some of these disputes, an encroacher might argue that property values will decrease if he can't continue his unlawful use of his neighbor's property. The property-values argument puts officers of the court in a bind. I think most or all of them have to recluse themselves because they have a personal financial interest in property values. They own property and many are paid out of property tax revenues calculated on property values. Madigan and Burke are especially vulnerable to the property values problem.

Originally Posted by laurelathome

The main problem is that the laws and precedents were developed for farmland by ancient rural societies. They don't transfer well to small urban lots and the much greater diversity of problem people with personality disorders who inhabit them.

This thread is 7 years old and the original poster never returned.

If you are currently having property issues you need to contact an attorney who is knowledgeable and experienced with this issue.

No one here can give you any legal advice regarding anything.