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What happens when a home is built inside the setback, causing an added deck to be built encroaching on the neighbors land?

Kirkland, WA |

A recent survey shows that a house built in 1972 was built less than 3' from the property line. 5 years ago a deck was added (with permits) that has stairs that land a couple feet over the property line. Based on the mistaken assumption that that the deck was not over the line a patio and 2 foot high retaining wall was built that extended even further into the property. Plantings were added and all has been maintained by the encroaching neighbor for the past 5 years.

The encroached neighbor doesn't want to give up ownership of this land, but the encroaching neighbor also believes they have a right to keep things the way they are now and doesn't want to cooperate.

Can all this be removed at will?
How does the setback violation complicate this?

This is in Unincorporated King County

Attorney Answers 3

Posted

"The encroached neighbor" should immediately review the specific facts with the encroached neighbor's attorney.

Outside of complaining to the appropriate government office that the legally required setback was not met, the encroached neighbor cannot do anything about the house itself as the house does not encroach on the encroached neighbor's land.

Given that the house was built in 1972, the government may not be able to do anything about the house now.

However, the encroached neighbor has standing to start a legal proceeding when something encroaches the encroached neighbor's land.

In WA, rights acquired by adverse possession generally takes 10 years.

"the encroaching neighbor also believes they have a right to keep things the way they are now" likely would be legally incorrect.

So, the encroached neighbor should want to do something now before losing the right to do something about the encroaching objects.

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Posted

I agree with the other answer, but wanted to add a few points.
First, whose recent survey was this? Was the survey for the "encroaching property" or the "encroached property"? Was a survey provided when the deck permit was obtained? What did it show? Are the properties platted? What does the plat show about the configuration of the lots? Before getting into a huge fight, it might be good to get another opinion about the property boundaries.
If both properties are within a subdivision, there may be covenants or declarations that have been violated, and which could be enforced.
Both parties are probably going to have to "laywer up" to resolve this, and no one can give you good legal advice without seeing deeds, plats, surveys, etc. for the properties. Both parties should collect all the backup material available to help the attorneys evaluate their positions and options.

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Asker

Posted

As a neighbor who doesn't have a dog in this fight I advised both that they need to resolve this. I am sure lawyers will be engaged. I want to have enough knowledge so that I can encourage them to pursue the proper paths in hopes of retaining what is a very friendly relationship in our neighborhood. The survey was done last week so that the "encroached" neighbor could remove a tree on the other side of the house. This issue was discovered because of he survey to the shock of everyone in the cul-d-sac. There was no survey during the deck permitting process. The plat shows the lines but everyone assumed the house was at least 5 feet from it. The "encroaching" house was built first, the other house was built years later after the property on the other side was short platted to create the building lot. There are no covenants and of course there have been multiple owners of both houses since they were built. I guess what I am hoping is there is some way for the "encroached" neighbor to allow the stairs to remain without giving up his ownership of that section of his property. No one seems to want it changed but also no one wants to lose. I am assuming (dangerous, I know) that the county would issue a variance on the house since it has been 40 years but the deck could be in jeopardy? All the stairs and the two support posts on the property line side are inside that setback.

Robert Lincoln

Robert Lincoln

Posted

Again - please don't take this as legal advice, since I haven't reviewed the surveys, plats or codes. But as possible avenues, other than a boundary line adjustment, if the owners agreed to an easement from encroached to encroacher for the area affected by the deck and stairs, the city might allow them to stay. Otherwise, my guess is that the deck and other installations will be determined to be illegal and have to go (and maybe the city will take that position unless the lot line is adjusted). Good luck with your neighbors!

Asker

Posted

Thank you. I understand that you are not giving advice. I am in educational mode here. :-) I assume that since there is no exclusive use here there is no pathway to adverse possession if the last two steps of the stairs remain partially on the neighbors property. Even if it did wouldn't the clock start with the discovery of the issue not the date of the construction? (Since there has been no "hostile"action or notice?) In general (fences, landscaping, etc) that is installed on another's property can be removed by that property owner? Would a structure (shed, decks, etc) have a different set of rules for removal? Is there a type of easement that is revocable? In other words can this owner give permission to leave the stairs with the understanding that at some point in the future they may need to be removed (sale of property, etc)? Sorry for all the questions, like I said, just learning concepts here, not passing on legal advice. :-)

Posted

I agree with the other answers, but let me add a little from the perspective of a Washington attorney. Of course, the concern is that the neighbor has or will acquire some sort of ownership by the encroachment by adverse possession. There are two important considerations to that, though. First, the presumption is that a use of another's property is permissive - not adverse. So long as the use is permissive, the ten-year adverse possession time doesn't start running. Permission can be shown in a lot of ways, and is more a factual than a legal question. Second, a "structure" - which a deck likely is - cannot generally encroach into the side-yard setback areas of a lot, which vary based on zoning. There is even some law that says that an adverse possession that violates the law will not ripen into ownership. Perhaps more importantly, from a practical standpoint, is that the violation of the setback can be abated by the City (or by you using one of a number of procedures). You might even want to check with the local fire authority. Bottom line, if the encroachment is not a problem physically for you, but the concern is adverse possession, get the neighbor to sign an acknowledgment that it is using the property with your permission. If it is a problem, then first try to get the City to do its job. If that doesn't work, a trespass/quiet title action may be necessary. The Courts are not particularly reluctant to make people tear down such encroachments (even entire houses, on occasion) when the trespass is intentional. With a trespass action, there is even some potential to get damages and reimbusement for your legal fees. Sounds like you have a pretty good legal case, but litigation won't do much for your neighborly relations! Finally, technically, you can protect your private property; i.e., you could possibly tear those improvements out of there. Not recommended. Get the City or a Court behind you before such a precipitous action. A possible practical solution: sell the neighbor the property they need, subject to a boundary line adjustment, if you don't need the property for your own use. Good luck!

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Posted

Thank you for your response, it is very helpful. In this case there is no "city" involved. This is unincorporated King County although it will be annexed into Bothell in the near future. My first impressions seem to be correct, that the "encroaching" neighbor has a lot to lose and nothing to gain in this situation. Hopefully they will see this and realize their biggest problem isn't their neighbor (who has and remains willing to give his permission to keep the status quo) but the County. He needs to go to them quick and try to resolve their issues first before it comes to their attention and likely becomes nasty. Time seems to be on the side of the "encroached" so he has settled down and seems to be willing to give it time to be resolved in the best way possible. Thanks again for your input!

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