Nadel & Ciarlo, P.C.

Manhattan property owner sues over 8-inch encroachment

In Manhattan, land is at a premium. It is, therefore, not too surprising that a dispute over a fence that is allegedly eight inches over the property line has led to real estate litigation in the New York Supreme Court.

The lawsuit was brought in the New York Supreme Court against a real estate broker who owns a town house on East 64th Street. His neighbor claims the broker has refused to take down the fence. The broker says the fence has been there since he moved in 30 years ago, and that no one has asked him to remove it.

A property owner whose neighbor has put up an encroaching structure has the option to do nothing and allow the encroachment to continue. The downside of doing nothing, however, is that the encroachment will have to be disclosed to potential buyers if the owner ever tries to sell the property. And, if the encroachment continues long enough with no complaint by the encroached-upon owner, there is a risk the encroacher could gain title to the disputed property through the doctrine of adverse possession.

In New York, the legal remedy for encroaching fences and other structures is an ejectment action. In an ejectment action the plaintiff can seek an injunction compelling the other party to remove the offending structure. The court can also award monetary damages in lieu of an injunction. Before bringing an ejectment action, however, the plaintiff may need to file a quiet title action to obtain a ruling that the plaintiff actually has title to the land that is allegedly encroached upon.

Source: New York Post, "Real-estate bigwig's fence sits on neighbor's property: lawsuit," Kathianne Boniello, March 20, 2016

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