Jorge Cardenas and Griselda Barbosa Martinez from the West Colfax neighborhood of Denver have filed a 50-page lawsuit against the City of Denver, a property developer and a construction company, accusing them of violating the family’s rights and threatening their property, reports CBS News Colorado.
The couple claims that, due to the construction next door, the alley beside their property was shifted closer to their home, which endangered a retaining wall and several mature trees. Yet, according to the lawsuit, neither the city nor the developers could define the boundary of the alley and no due process was followed.
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“This is our home,” Barbosa Martinez told CBS News Colorado in Spanish.
The couple have lived in the house for 20 years and have reconstructed it during that time. As new apartment and townhome developments rose around them, they’ve turned down multiple unsolicited offers from developers, including one for $180,000 in 2022, even though homes nearby were selling for more than half a million. Later that year, the construction started.
When it did, “they received a letter on their door advising them that in another week, this construction company would be coming onto their property and knocking down all their trees and that the City of Denver had given authorization for it,” Anna Martinez, the couple’s attorney, told CBS News Colorado.
“You could never go to your neighbor’s house and say, ‘Your trees are in my yard, so I’m chopping them down.’ But that’s essentially what the threat was,” she said, adding that the lawsuit is about basic rights, protecting the couple’s home and whether a private company can exercise city authority.
“You can’t displace someone from their property. You can’t chop down their trees. You can’t trespass onto their land if you don’t know where the line is,” she said.
The city and the developer declined to comment because of the ongoing litigation. The case is awaiting a decision by the courts as to whether it will proceed.
What is a property encroachment?
“Technically, any physical feature (from a building extension to landscaping) that crosses the legal boundary line is an encroachment if it’s on your property without your permission,” Alexei Morgado, CEO and founder of Lexawise Real Estate Exam Prep, told Realtor.com. These features can include such things as fences, tree limbs and structural overhangs.
“Property encroachments, though they might sound like a minor concern, can significantly impact the value of your home,” Indianapolis law firm Katzman & Katzman, P.C. says in a blog.
The firm explains that these encroachments can make your home harder to sell — appraisers might lower the value of the home, which can reduce the price you can sell it for. And the legal costs of fighting an encroachment “can eat into your home’s equity.”
In most states, you’re required to disclose any encroachments to prospective buyers. If it’s unknown and discovered during the sales process, it may affect the buyer’s ability to get financing and could delay the sale. In the worst case, the neighbor could claim adverse possession, which would grant them title to the encroached area and reduce your property value.
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What to do if your property’s encroached
If you suspect your neighbor’s property is encroaching on yours, the first thing to do is verify that this is, in fact, the case.
“A homeowner who believes that a neighbor has erected a fence, shed, driveway or some other encroaching structure onto their property should first make sure they have a current survey,” Thomas Weiss, real estate litigation attorney at Vishnick McGovern Milizio LLP, told Realtor.com.
If you got a deed or survey when you bought the home, you can check this. Or, you may be able to find information at the local land record office. However, you may need to commission a professional survey prepared by a licensed surveyor.
Many encroachments are unintentional, so a good approach is to start with a calm, friendly conversation. If you’re unable to resolve the dispute, send a formal letter notifying the neighbor of the encroachment, providing details and demanding a remedy by a certain date.
If this still doesn’t bring about a solution, then you may need to consider taking legal action. The laws vary by state so consult a lawyer who specializes in real estate law.
Alternatively, you can allow the encroachment to remain through an easement agreement or a revocable license. An easement agreement is a legal agreement that will allow the neighbor to use the portion of your property that is being encroached for a specific purpose and period.
A revocable license will allow your neighbor to keep the encroachment, but this permission can be revoked at any time. It differs from an easement because it’s much harder to revoke an easement.
An easement or revocable license can still hurt your property value because it’s a hassle many buyers don’t want to deal with.
However you choose to deal with an encroachment, it’s best to tackle it head-on — and as soon as possible — to save headaches and the potential loss of some of your property in the future.
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This article provides information only and should not be construed as advice. It is provided without warranty of any kind.
