What recourse do I have if the state and local government have built a road upon part of my land beyond the right of way?

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What recourse do I have if the state and local government have built a road upon part of my land beyond the right of way?

There is a new proposal to widen a road by my business rental property. This is the third such expansion. Upon reviewing the plan, the maps display that the present road is already built beyond the right of way in one area of my property. The future plan takes the new road up to the right of way in all other areas of my property. Can I reclaim my present property that the road is on? Should I sue?

Asked on July 1, 2011 under Real Estate Law, Ohio

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You need to ensure the survey that is recorded is actually the same survey used by the government for right of way development, zoning and planning. If the right of way doesn't touch your property, you only have a right to complain and sue if there is an actual detrimental impact to your business or your property is damaged. If the right of way is currently on your property and you had complained about it before, then this may be considered an encroachment (you can sue and have the governmental entity re-plan) or you may have your lawyer consider it an unlawful taking (and sue again). Talk to a land use lawyer (one who has experience with governmental projects impacting private residential or private commercial property) and see what can be done. If you only rent the business, you are a commercial tenant and don't have any property rights; but your landlord would have such property rights.


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