Here is the story. The widow is selling some of her property that she inherited from her late husband. I am doing a lot split for her.
During the course of the survey I discover the adjoiner has built a deck within 0.8' of the line and the gutter drains extend onto my clients property and they have done some minor landscaping, creeping juniper bushes and flower, nothing permanent.
The have also cleared a small piece of my clients property +/- 3000 sq. ft. for a fenced garden and they have built a small green house made of some kind of reinforced plastic film.
I spoke with the adjoiner and they knew about it and they have a prior survey from a reputable surveyor who has since retired to the Georgia Coast showing the deck built up to the line. The survey does not address the landscaping or the drains or the garden, no big deal though, at least I don't have a major blunder.
So I ask the adjoiner about the garden and greenhouse and she said that the now deceased husband of my client told them that they could plant a garden and do basically whatever so long as they didn't build anything permanent.
Now the green house could be torn down in less than 5 minutes and the garden is nothing fancy, just some metal t-posts and some fencing and vegetables and a bat house.
But is it an encroachment if they had verbal permission?
I have not spoken to the client and I have no clue if she is aware of the arrangement her late husband supposedly made.
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An attorney once told me that verbal agreements don't run with the land.
If they've been using it long enough it could turn into an easement right although I would suggest determining if it is an encroachment isn't within your area of expertise.?ÿ Show your Client what it is and where it's at in relation to the boundary and let her decide what she wants to do about it.?ÿ
They know where the actual boundary line is and their survey shows it where you show it.
That ends any claim to the land they are using across the boundary.
They can use the land until your client tells them they can't.
I guess my concern is this. If I show the P.O.S. greenhouse halfway over the line it may cause a problem with the sale.
And the garden.....well....not much of a garden but still do I omit both from the survey?
I intend to talk with the owner tomorrow about this and suggest that she deal with it via a letter and get these removed.
The last thing I want is a new owner calling me when his garden is discovered to not have any tomatoes or okra for him to eat.
Permissive use is never adverse.?ÿ The neighbor has admitted to you the the use is permissive, so no adverse possession has occurred. So the answer in NO. It's not an encroachment. That doesn't mean it's not an issue you should show on your map. The nature of the possession could change from permissive to hostile at any moment, and then the clock could start to run.
The owners both know where the PL is so no boundary by unwritten agreement can happen.
There must be zoning laws governing the area dictating how close something can be built to a PL.
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Is there a Zoning Law, in your area, that Governs how close you can build/enjoy some sort of garden/landscaping?
Maybe there should be...
Another?ÿissue, and one that?ÿcould be more important than?ÿthe encroachment question, is?ÿthe gutter drains.?ÿ At least around these parts it isn't legal to discharge storm runoff from one property onto another unless that's the historical pattern.?ÿ Building a house with a deck and dumping the gutters directly onto the other property is probably not the historical drainage pattern.?ÿ
Verbal agreements aren't worth the paper they're written on.
An encroachment is without permission by definition.?ÿ An encroachment crosses over the boundary.?ÿ If the object is entirely on the other side of the boundary then it is a trespass.
Verbal license is not a valid transfer of real property rights. It does prevent most future adverse claims.?ÿ
I currently occupy some of my neighbors yard. We know it and dont really care. Under Idaho code the fence would be the line if they hadnt given me a revocable verbal license. If I were a dirtball I could lie and make problems. No amount of property is worth trading for the ability to look in the mirror.
A verbal agreement is between certain parties, when one party dies the agreement no longer exists. The neighbor needs to get a new agreement or abandon the use.
What you would show on your survey is "Land in use per prior oral agreement of Party 1 and Party 2." You do not address whether both parties are alive or not or if the agreement still exists.
Paul in PA
Oral or parol agreements can run with the land and don't necessarily die with the parties but the difficulty is proof of its existence.?ÿ The Statute of Frauds was instituted to prevent fraud; it cannot be used to support fraud which is why sometimes the Statute is not enforceable.?ÿ It is often said the Statute of Frauds can be used as a shield but not a sword.
Subsequent parties in interest with notice definitely may be subject to the agreement.
If the agreement is a revocable license then the license can be revoked at any time by the property owner despite title transfers.
The California Courts, which have been somewhat strict in fences as boundary questions, have invented the irrevocable license which is strange.
Another way to put it is?ÿAs a matter of Law?ÿoral agreements can run with the land and do not necessarily die with the original parties.
As a matter of Fact?ÿtheir existence must first be proved and subsequent purchasers must have some notice of their existence (such as a physcial boundary or road which at least raises inquiry notice).
Sometimes the Law picks up the ball and changes the legal status of the agreement.?ÿ Say Farmer Jones orally grants Farmer Smith an access easement over which Farmer Smith builds a road.?ÿ 50 years later Jones and Smith are dead and the memory of the agreement died with them but Smith and his successors have always used the road for access.?ÿ In this case the legal principle of prescription would take over.?ÿ Sometimes prescription and adverse possession is thought to be based in a forgotten grant.
@ Just A. Surveyor
As you stated, there are only temporary structures and should not be described any other way.