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Ask Adam: Property Encroachment

by ARLnow.com | August 27, 2013 at 1:00 pm | 1,142 views | No Comments

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This regularly-scheduled sponsored Q&A column is written by Adam Gallegos of Arlington-based real estate firm Arbour Realty, voted one of Arlington Magazine’s Best Realtors of 2013. Please submit follow-up questions in the comments section or via email.

Question: According to our property survey it seems that part of our neighbor’s gravel driveway is on our plot of land. How have your clients dealt with this scenario? What would you recommend?

I have had similar issues come up when a neighbor’s fence encroaches on someone else’s property. In some cases they have asked that the fence be moved. In other cases they have resolved the situation through a method similar to what is described below. The nice thing about a gravel driveway is that it can be a little easier to move than a fence.

Though easy to resolve, it’s an unfortunate circumstance because most people moving into a neighborhood would prefer to avoid confrontation with their new neighbors. It’s possible that the neighbor is not even aware that they are encroaching on your property.

I recommend finding a friendly yet effective way to address the situation to avoid the possibility of adverse possession. According to A Broker’s Guide to Virginia Real Estate Law, adverse possession is the acquisition of title to real estate by means of adversely occupying the property. To establish title to real property by adverse possession, a claimant must prove actual, hostile, exclusive, visible and continuous possession under a claim of right, for the statutory period of fifteen years. Based on my interpretation of this statement, if the neighbor continues to encroach your property for fifteen or more years, they could have a legal claim to the the portion of property they are encroaching.

Sara Rodriguez, the settlement attorney at Ekko Title in Arlington, recommends one of two paths.

The first is to quite simply rectify the situation by moving the gravel driveway back onto the neighbor’s property and off of yours. The other option is to send the neighbor a certified letter acknowledging this encroachment and consenting to it on a temporary basis. By giving permission to use the land you take away their ability to stake a claim to the property by adverse possession.

For further assistance, I recommend contacting an attorney.

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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