Q: I purchased a property around 10 years ago in Chicago. A neighbor has a bay window that encroaches onto our property by 6 inches. There is a cross easement between the 2 properties to allow access to the rear.
Can we have the owners remove the window if it was built within a certain period of time (i.e. less than 20 years ago)? If the owner wants to make improvements to the bay (put new siding on it), is there anything we can do at that time to remove the encroachment?
A: Is there a specific reason you would want your neighbor’s bay window removed? Do you have a rotten neighbor? You have lived with it that way for 10 years and it has been there for almost 20 years. Did you or your former owners know that the neighbor was building the home with the bay window that encroached and did not object?
Let’s go back even further. When you bought the home, did you know that the bay window encroached onto your property?
We have more questions than answers for you on this issue. There are times that surveyors make mistakes and show encroachments that don’t really exist. Sam has represented clients where when they buy property the surveyor shows an encroachment, and upon sale, a different surveyor does not show the encroachment – and nothing has changed with the property.
You would need to review your survey to determine if the encroachment is depicted and you might even need to verify the size of the bay window encroachment. Surveyors have different methods of preparing their surveys. Some methods are more accurate than others. While all of their methods tend to be quite accurate, surveyors tend to be more careful when they prepare their surveys in accordance with ALTA/ACSM standards (American Land Title Association and National Society of Professional Surveyors).
If your survey was prepared in accordance with those standards, you should have accurate dimensions of the bay window encroachment. If your survey does not have a certification that states that it was prepared in accordance with those standards, you might need to verify the encroachment and determine the exact measurements before you tell your neighbor that you want him to take down part of his home.
In general, a homeowner does have the right to have a neighbor remove an encroachment of his property onto a neighbor’s property. But the law generally would not like to give you that right if you sat passively by while improvements were being made and did not inform the neighbor of the problem.
Also, you say that you and your neighbor have an agreement regarding access to the back of the property. Does that agreement say anything about the bay window? In some urban areas, homes have bay windows on the second and third floors, but instead of a first-floor bay window, there is a walkway to allow access alongside of the home.
Now, if you have verified that the encroachment exists and its exact dimensions, and you verify that there is no other documentation that permits the encroachment onto your land, and there is no way any prior owner could be said to have permitted the encroachment nor agreed to the encroachment, you might have a right to force the removal of part of the bay window.
In some parts of the country, you can’t complain about these encroachments if a certain amount of time has passed. The law doesn’t like neighbors who wait around forever before asking for the removal of a structure or a change to a property. Usually, the law prefers to have owners deal with these issues as soon as possible after the construction is completed or within a certain time period after it became known that there was a problem.
In your case, it might be that too much time has passed for you to make that claim. As far as the neighbor repairing his home and replacing the siding, the neighbor might have the right to do that. Some states and some municipalities have laws that permit homeowners to fix up their properties even if that means that they have to go onto the neighbor’s property to make the repairs. They might have to make sure they make the repairs at certain times and make sure that they do not damage the neighbor’s property, but they may have the right to fix their home. It’s in the city’s best interest to allow homeowners to keep their homes in good repairs.
So if the bay window is there to stay, you might not be able to prevent the neighbor from making repairs to the window. But you will be able to prevent the neighbor from making the encroachment larger. That is, the neighbor can’t take advantage of the situation to worsen the encroachment onto your property.
If you think you want to take it to the next level, you might want to take the survey along with your other documents from the closing to a real estate attorney to discuss this issue further. You might find out that the cost to proceed on this issue will outweigh any benefits you might get out of the case. If you sue your neighbor to remove that part of the bay window, you might also find that the judge hearing the case will want to know how you have been harmed by the bay window and weigh the harm to you against the harm and damage to your neighbor’s home in removing six inches off the bay window.
Once you go down the path of suing your neighbor, be prepared to have a rotten neighbor for the rest of the time he or she lives next door to you.
One last item, it’s possible under some state’s laws that your neighbor might have obtained an easement over your property by virtue of having the bay window where it is for so long.