Legal Question in Real Estate Law in Illinois

Deck ownership dispute

I bought my townhome that shares a two car garage with the next door townhouse. The people I bought the TH from had built a deck over the garage and had it deeded to them which was given to us when we bought. The stairs to the deck are on our property - the space between our townhome and the shared garage. The other owner now wants to share the deck even though it is deeded to my property and the access stairs are on my property. The neighbor pays taxes on her part of the garage and the deck covers the entire garage roof. Do I have any chance of retaining complete ownership of the deck and if they win half can i restrict them from using the access stairs?

Asked on 3/28/04, 4:28 pm

3 Answers from Attorneys

John Pembroke John J. Pembroke & Associates LLC

Re: Deck ownership dispute

If you have a deed to the deck, it may not be a common element, and thus, your neighbor may have no rights. To give you an answer as to whether you have rights, and whether you will prevail, an attorney should review the deed and townhouse/condo declaration.

However, if a court grants use to your neighbor, they will likely have an easement by necessity for access over your "stairs" or other property. This issue is not entirely predictable, depending on the physical layout and whether they can build their own stairs on their own, separate property.

These condo disputes are the type no one really "wins". But, your neighbor presumably joined in the deed to your predecessor, or at least was on notice when it was built. Sounds like this dispute will be emotional, if not resolved by settlement soon.

P.S., Who is paying the taxes may not be dispositive. There is a concept of an easement by prescription over property on which someone pays tax for seven years, but that should not apply to property where the improvements are the subject of a declaration of rights. You will need to consult an attorney, with all relevant documents, before proceeding in court.

Our comments are based on treating your question as a hypothetical. Accordingly, our comments could be substantially and materially different were we advised of all of the relevant facts and circumstances. Our comments are by necessity general in nature, and should not be relied upon in taking or forgoing action in your circumstances without retaining an attorney. In order to fully explore your legal matter, you should meet with us or another attorney and bring to any such meeting all relevant documents and correspondence, and any other relevant facts.

We are not hired to be your attorney, and no attorney-client relationship exists between us, unless and until you enter into a written retainer agreement with us, tender the agreed amount for a retainer and it is accepted by us. We reserve the right to decline representation should circumstances change.

As you are aware, in Illinois there are various deadlines for filing a complaint, filing an answer to a complaint, or taking other action in order to preserve your legal rights, and avoid a complete loss of those rights. You should retain counsel immediately in order to be fully advised of your rights, and to be fully informed of the applicable time period within which those rights must be asserted. If you were to delay in doing so, it might result in your potential cause of action being forever barred.

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Answered on 3/28/04, 4:41 pm
Barry040 Bayer Law Offices of Barry D Bayer

Re: Deck ownership dispute

You say:

"The people I bought the TH from had built a deck over the garage and had it deeded to them which was given to us when we bought."

If by that you mean that the owner or the other TH or the owner of both THs before selling your to you arranged things so that the garage roof rights and/or the deck rights (which may be the same thing) belong solely to you and not to the owners of the other TH, you should be in good shape.

If you mean something else, you could, indeed, have a problem. Can you be more specific?

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Answered on 3/28/04, 6:01 pm
Mary McDonagh McDonagh-Faherty Law Offices

Re: Deck ownership dispute

You should be OK but an attorney must review all the paperwork to give you a thorough opinion.

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Answered on 3/29/04, 8:17 am

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