I have a project where the adjacent property has a cantilevered portion of their building encroaching into the property I am surveying by 0.6'. Would an easement be an acceptable way to address the encroachment, or is a lot line adjustment required. If an easement is acceptable, does anyone have an example of the language that would describe an easement for this purpose? Would this be an air space easement? Thanks in advance for your help.
> I have a project where the adjacent property has a cantilevered portion of their building encroaching into the property I am surveying by 0.6'. Would an easement be an acceptable way to address the encroachment, or is a lot line adjustment required.
Depends upon the desires of the landowners. They need to decide how they want to fix the issue. If they want to sell/purchase the encroachment area to make a permanent change in the boundary, then a LLA is appropriate. If they want a permanent solution but not mess with the LLA, then a permanent appurtenant easement is appropriate. If they want a temporary solution until such time as the building burns to the ground or is remodeled, then an appurtenant easement with a termination clause would be appropriate. If they want a temporary solution, then a revocable license (permission) might be another solution.
>If an easement is acceptable, does anyone have an example of the language that would describe an easement for this purpose?
Depends upon the nature of the easement grant. The language in an easement grant must be tailored to the specific issues at hand, so there isn't any "canned" easement I would recommend. Sounds like you might be needing the assistance of an attorney.
>Would this be an air space easement? Thanks in advance for your help.
Depends upon how far off the ground the overhang is. If it's a few stories up, the underlying owner could make use of the ground under the overhang and an air space easement would be appropriate. If your talking about an overhang two feet above ground, there's not much practical use of the ground below, so an easement from the ground up would be appropriate.
Yep. Depends...
JBS
i believe i would recommend a property line adjustment/agreement. your client looses all practical access to the property covered by the encroachment. as long as the building is there they loose access to the property.
> i believe i would recommend...
I would be very careful making any "recommendation" which could be perceived as giving "advice." I wouldn't hesitate presenting a number of options available in order to assist the owners in negotiating an informed agreement. I also wouldn't hesitate assisting them in the document preparation as long as it was within my area of expertise and not crossing the line defining the "practice of law" in my jurisdiction.
If you don't know what the "practice of law" is in your jurisdiction, then Goggle it, read it, and understand what makes the difference. Surveyors have a large role to play in these types of negotiations, but we need to be aware of what we are or aren't allowed to do by law.
JBS
I'd say you may have bigger problems ....
than the encroachment of an overhang. Not your client, but the owner of the building that is encroaching ought to be concerned about such things as zoning issues as relates sideyard requirements, other set back issues, etc. An easement will not beging to correct those issues.
If these issues are not addressed and solved he may end up with property that is not marketable.
In CA a LLA will require compliance with current building and zoning codes. Each jurisidiction has their own take on this, but often a key is that the LLA needs to meet that agency's setback requirements. So, the result is the owners may need to move the line the encroachment amount plus a setback amount.
LLAs often open the can of worms if there are any unpermitted improvments or non-compliance issues. The agency can also require zoning amendments if warrented. Many Ca agencies will try and get other deficiencies resolved through the LLA process regardless of the limitations contained in the state law. Compliance with building and zoning ordinances has a wide variety of interpretation.
An easement may be addressed many different ways, and may still allow the underlying fee owner that enjoyment which does not interfere with the dominent tenement holder's use. However, an easement for improvements may be a problem for some lenders when mortgages are sought.
Irregardless, consider if the need for maintenance access to the overhang is needed when approaching this.
I'd say you may have bigger problems ....
While this is definitely a question for an attorney I think the only way to clear up title is to adjust the lines.
I surveyed a large commercial structure that was "right on the line" and found the eaves to encroach. I showed it on the survey as an "aerial encroachment", per my best friend who also happens to be an excellent real estate attorney.
I also agree that this is likely an issue that would come under your local jurisdiction's ordinances and should be addressed.
Clearcut
Funny you should bring that up. I'm in CA and a lady came in a while back with her checkbook open to get me started on a lot line adjustment for her and her neighbor. It had been determined by me and confirmed by a court 8 years ago that the property line goes through her house so unbeknownst to me, she and the neighbor signed kind of a boundary agreement document prepared by an attorney that they desired to adopt the fence as the boundary and that they would apply for a boundary adjustment through proper channels at the County.
Before taking her money, I noticed that even moving the line from her living room to the fence would still leave one of the property corners with her other neighbor inside her garage. Also, the adjustment would reduce the size of her neighbor's property which was already slightly smaller than allowed by zoning. I contacted the head honcho at the Planning Dept. and he said that since we weren't making the garage encroachment any worse and we were solving part of the problem, he would approve the adjustment.
When I took the application package in day before yesterday, the counter guy noticed that were trying to make a non-conforming lot slightly less conforming to required lot size so he went back and talked to the honcho and they went ahead and accepted it. That was a little scary, but they're looking at it from a practical standpoint that we're solving a bad problem the best way we can. They could have been hard-nosed about it but why?
Easement
Since the issue is a "cantilevered portion of their building" and not the actual building foundation, why adjust the lot lines?
I would suggest an easement for the existing cantilevered portion of the existing building which would expire if/when that portion of the building no longer exists.
Probably couldn't do an easement here because of zoning law..
I disagree a littl e with Mr. Stahl, I would give them 'advice' or the pros and cons of each.
> Probably couldn't do an easement here because of zoning law..
> I disagree a littl e with Mr. Stahl, I would give them 'advice' or the pros and cons of each.
I would agree, Joe. A list of "pros and cons" is giving knowledge, not advice. The only way for the landowners to make an intelligent decision is to consider the options. Giving information is not the same as giving "advice" on which solution you'd recommend.
JBS
I agree with giving them "food for thought" and not practicing legal advice. There are things you might see regarding easements vs. boundary lines that a legal expert might not think of.
If an easement is to be utilized, they might want to make sure they have more than 'air space' but enough room to be able to continually maintain the overhang (or whatever you're calling it).
One reason you might want have them discuss an easement, is that it doesn't reduce the amount of property the neighbor owns. This could potentially a problem if they have zoning or other issues with where the actual division line is even if the neighbor is perfectly happy with the loss of land, he/she could have other problems by not owning it. Another advantage might be that if there is a clause that whenever the need for the easement ceases to exist, the easement will expire. That way, if the house is ever remodeled or torn down, the original owner still has their alloted space. I would imagine that an attorney would want to be hired to help the client to come up with the appropriate protective language needed for the improvement and maintenance of that improvement.
Just a couple of my thoughts on the issue.
Tom
Maybe the neighbor should advise the overhang neighbor to saw it off...then no problem!
If a neighbors house was built wrong to have a overhang on my property, I would not do any favors by giving an easement or amending my deed.
Keith
Steve
sounds like you got a good result there, nice when the agency will allow the LLA process clear up title issues and not let building/zoning compliance be an obstacle.
Yeah....that would work too. Borrow a cup of sugar while your over there....
By the way, I wasn't suggesting that anyone does anyone any favors. You would charge for the lot-line adjustment, or for the easement. And you would make it worth your while. I don't agree with the neighbor building an addition without getting their property surveyed....but apparently the problem is already existing. Try to not get shot after you make a neighbor tear down his house or addition. And hope that some kind of adverse possession hasn't ripened.
Saw it off
> Maybe the neighbor should advise the overhang neighbor to saw it off...then no problem!
Sometimes it's a little too big to saw off.
The subdivision lots here here designed to (in places) be one foot off the face of the building. It's hard to see, but six floors of the parking garage cantilever out two feet from the face of the building where it faces the white adjoining building.
Company "A" designed the site, company "B" did the construction stake out, and the problem wasn't discovered until company "C" (me) came in at the end to prepare the condominium plats.
Luckily for the developer the encroachment was on a parcel of county land; and since it was an area that the county was pushing hard for infill redevelopment, the only cost to the developer was the replatting.
BTW - NGS's headquarters is at the other end of the block.
You need to provide more information, specifically is this a hi-rise building that is encroaching on the property you are surveying? Is another hi-rise, on the property you are surveying, proposed? If so would the 0.6’ encroachment impede the construction of same? If the latter is the case you should have your client contact an attorney.
If it’s a simple encroachment, such as an eve overhang on a residential property then
I wouldn’t be concerned. Place a statement on your survey that indicates no aerial or subsurface encroachments were located.
Just MYHO.
Have a great week!
This is a residential area, the homes are at least 50 years old.
clearcut
It's not over till it's over, but so far I'm happy with it. It seems like they could have tried to require a variance for another $1600 or even a rezone for another $3000. I think this Planning Dept. will be a way different place when said honcho retires. He has always been willing to interpret the code in the public's favor, but I think the new kids would go the CYA route.
Easement by prescription.