Pre-existing Deck

[Nathan78]

Jurisdiction

Ohio

My neighbor and I are having a Dispute over 2 to 6 inches of property line. He is saying that our deck has been built onto the edge of his property line. We live in a row of condos that were built in 2001. We are not the original owners, he bought and moved in, in 2014, we rented and moved in the same weekend they did and then bought our condo April 2018.
There's been no property line problems until now. He wanted to extend his deck to 3.4 feet from ours. To us it looked extremely close so we called the city to find out if they were building too close, which stopped their construction for about a month. Now he is upset and got his lawyers involved. What rights do we have to this 2-6" that our deck has been sitting on since 2001? Should it have been the responsibility of the builders back in 2001 to ensure this didn't happen? Or can we claim adverse possession since we have been exclusively using this, or it has been exclusively used by this property since 2001?

 

[Zigner]

Your matter is too complex for an internet forum. You need an attorney.

 

[army judge]

What rights do we have to this 2-6" that our deck has been sitting on since 2001?

If your adversary has retained counsel, you should IMMEDIATELY retain counsel, too.

To do anything other than hire your own attorney, puts you at great legal peril.

There is no other position for you to take, unless you enjoy getting steam rolled.

What rights do we have to this 2-6" that our deck has been sitting on since 2001?

You acquired the property (POTENTIALLY) without doing your due diligence.

You should have paid for a survey before you bought the property, rather than rely on the LIES and PUFFING of the seller or her/his/their "real estate salesperson".

What you need to do today, is hire a real estate attorney to protect your interests and investment.

Should it have been the responsibility of the builders back in 2001 to ensure this didn't happen?

It doesn't matter to you, today what others failed to do 20 years ago.

You should always have ANY property you are looking to buy "surveyed" prior to purchasing the property.

You relied on the representations of others, which is why you are sitting on the precipice of a lawsuit today.

can we claim adverse possession since we have been exclusively using this, or it has been exclusively used by this property since 2001?

If "Ohio's doctrine of adverse possession" were to be applied in this case, you appear to be short of the years required to assert your claim.

In Ohio, adverse possession laws require a 21 year period of occupation before title is conferred to the trespasser.

You allege you bought the property in 2018, the other party in 2014.

Neither of you could successfully assert the doctrine of "adverse possession" in the instant matter being discussed.

More on adverse possession in Ohio:

Ohio Adverse Possession Laws - FindLaw

Adverse Possession in Ohio | The Ohio Real Estate Blog

Real Property - Cleveland, Highland Heights, Euclid | Fanger & Associates

 

[zddoodah]

We live in a row of condos

I doubt that's correct. If you lived in a condo, then your ownership would stop at the interior walls. If there's a property line, then what you own is not a condominium.

What rights do we have to this 2-6" that our deck has been sitting on since 2001?

So...the deck has been there since 2001? And your neighbor bought in 2014 and you bought in 2018? I think that's all correct?

If all that's right, then you have no rights. What you'd be seeking to establish is a prescriptive easement (which is essentially a lesser form of adverse possession), but that requires the passage of 21 years.

Should it have been the responsibility of the builders back in 2001 to ensure this didn't happen?

Yes.

Did you obtain a policy of title insurance when you purchased the home last year? If so, you might have a claim (although the fact that you had lived on the property for four years before buying might work against you). I suggest you confer with a local real estate attorney.

 

[Red Kayak]

In addition to everyone else's sage advice: GET YOUR OWN SURVEY. It's always possible that his survey is incorrect. Might as well confirm whether you're encroaching or not.

 

[Nathan78]

I just received this from our HOA president. If anyone could dumb this down for me. If I read it correctly our deck was built with the structure so there is no problems.

Also, below is Section 8.1 from the Declaration offered without comment.

"8.1 Easement for Encroachments. The building(s), all utility lines, and all other improvements as originally constructed shalt have an easement to encroach upon any Lot and upon any deviations in construction from the plans contained in this Declaration as a result of the location of the building, utility lines and other improvements across boundary lines between and along Lots and/or the Common Elements, or as a result of building or improvement movement or alterations or additions from time to time, providing that such alterations or additions have complied with the requirements of this Declaration.

If by reason of the construction, settlement or shifting of the buildings or by reason of the partial or total destruction and rebuilding of the buildings, or improvements constituting part of the Subdivision, any part of the Common Elements shall encroach upon any part of a Lot, or any part of a Lot shall encroach upon any part of the Common Elements, or any part of a Lot shall encroach upon any part of any other Lot; or if by reason of the design or construction or rebuilding of the utilities system within the Subdivision any pipes, ducts, or conduits serving a Lot shall encroach upon any other Lot, easements are hereby established, granted and reserved, for the maintenance of any such encroachment and for the use of such adjoining space are hereby established and shall exist for the benefit of such Lot Owner and/or Association, as the case may be, so long as all or any part of the building containing such Lot shall remain standing; provided, however, that in no event shall a valid easement for any encroachment be created in favor of the owner of any Lot if such encroachment occurred due to the willful conduct of such Owner."

 

[Zigner]

I just received this from our HOA president. If anyone could dumb this down for me. If I read it correctly our deck was built with the structure so there is no problems.

Also, below is Section 8.1 from the Declaration offered without comment.

"8.1 Easement for Encroachments. The building(s), all utility lines, and all other improvements as originally constructed shalt have an easement to encroach upon any Lot and upon any deviations in construction from the plans contained in this Declaration as a result of the location of the building, utility lines and other improvements across boundary lines between and along Lots and/or the Common Elements, or as a result of building or improvement movement or alterations or additions from time to time, providing that such alterations or additions have complied with the requirements of this Declaration.

If by reason of the construction, settlement or shifting of the buildings or by reason of the partial or total destruction and rebuilding of the buildings, or improvements constituting part of the Subdivision, any part of the Common Elements shall encroach upon any part of a Lot, or any part of a Lot shall encroach upon any part of the Common Elements, or any part of a Lot shall encroach upon any part of any other Lot; or if by reason of the design or construction or rebuilding of the utilities system within the Subdivision any pipes, ducts, or conduits serving a Lot shall encroach upon any other Lot, easements are hereby established, granted and reserved, for the maintenance of any such encroachment and for the use of such adjoining space are hereby established and shall exist for the benefit of such Lot Owner and/or Association, as the case may be, so long as all or any part of the building containing such Lot shall remain standing; provided, however, that in no event shall a valid easement for any encroachment be created in favor of the owner of any Lot if such encroachment occurred due to the willful conduct of such Owner."

That would be a great thing for your attorney to read and decipher/comment on.

 

[zddoodah]

I just received this from our HOA president. If anyone could dumb this down for me. If I read it correctly our deck was built with the structure so there is no problems.

Entirely possible that you're correct.

Care to comment on my prior response about whether you live in a condominium or something else?

 

[Nathan78]

Entirely possible that you're correct.

Care to comment on my prior response about whether you live in a condominium or something else?

I guess I should have said they are attached townhomes. I can post a pic of them if that helps

 

[Nathan78]