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posted: 12/4/2011 12:01 AM

Law talk: Encroachment creates quandary

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Q. We were required to have a survey of our lot done to obtain a building permit for a new fence. When reviewing that survey we found our neighbor's driveway was built over onto our property by about one foot. The city advised that there is nothing they can do.

What is the proper manner for handling a problem of this nature?

A. Depends on what you wish to accomplish. If you want your one foot back, contact the neighbor, make him/her/them aware of the issue and attempt to come to a resolution.

One way to accomplish this without causing discontent would be to tell the neighbor (hopefully they're not reading this) that you obtained the survey and discovered the driveway issue. Tell them you don't really care about the foot but your attorney told you it is possible to lose that foot if the neighbor's use of the one foot goes undisturbed for a prescribed length of time. Also tell them you have been informed that the one foot could create title issues when you decide to sell your property.

The obvious but not so desirable solution would be to chop off the one foot. A better solution might be to enter into some type of agreement, with the neighbor acknowledging and you agreeing, for the use of your one foot. Talk to a real estate attorney regarding your options.

Q. I own a condo that I rented to a guy on a one-year lease. The lease was up at the end of October but he hasn't moved. He sent me a check for November rent but I have not cashed it because I want him out. What do I have to do to get him out? Do I have to give him some sort of notice before I file something in court?

A. First, don't cash the check. If you do, you will have created a month-to-month tenancy that requires a 30-day notice to terminate. And no, no notice is required, presuming nothing is contained in the lease requiring notice to the tenant. Simply file a forcible entry and detainer (eviction) lawsuit in the county where the property is located. Presuming he is served by the sheriff, obtaining an Order of Possession on the initial court date should not be a problem.

Q. My condo board has assessed me a $35 fine because they say I parked somewhere I should not have parked. The fine has appeared on my regular monthly statement. There were circumstances that required me to park where I did. Anything I can do to remove this fine?

A. If practical, you could informally approach a board member and explain the situation. They would probably advise you to appear at the next board meeting; however, maybe the person you spoke to would discuss the matter with his or her fellow board members and perhaps they would agree to give you a pass. Otherwise, there must be a procedure in place to address fine disputes. Determine that procedure and follow it. This may or may not require filing something in writing prior to the monthly board meeting. More likely, you will simply appear at the next board meeting and plead your case. Bring any evidence you may have to support your argument.

Keep in mind the board is required to enforce rules and regulations uniformly. Giving someone a pass on a parking violation opens up the argument for the next guy that, hey, you should give me a pass because you gave Mr. Smith a pass last month. Convince the board your circumstances warrant a special dispensation.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to or call (847) 359-8983.