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The easiest way to understand encroachment in real estate is to envision a line drawn in the sand. One side of what's behind the line belongs to you, and the other side belongs to your neighbor. (If you ever shared a room with a sibling, you probably understand the importance of that line.) An encroachment in real estate occurs when either you or your neighbor physically crosses the property line, intruding on the other's real property without their permission.
Encroachment can also happen when you, as a property owner or investor, invade public land. This can happen when you extend a patio deck onto the common grounds of a community, put up a basketball goal that extends onto the street, or maintain large plants that grow in a way that blocks the sidewalk, to give a few examples.
Two types of encroachments
The trespass type of encroachment happens when the intrusion is to physical land. A fence on your neighbor's property or a shed placed partially on your neighbor's land would be a trespass encroachment.
A nuisance encroachment applies to airspace. Think of planting a tree with branches that overhang into your neighbor's yard or building a structure that blocks sunlight to your neighbor's solar panels.
Are encroachments legal?
When you encroach on someone's land, you're violating property rights. So, no, encroachments are not legal. No one has the right to encroach on someone else's property. If the encroachment has been in place for years, however, the person encroaching might be able to claim the right to the property through adverse possession. The following needs to be in place for between seven and 20 years, depending on the jurisdiction, for adverse possession to take place. Adverse possession must be:
- Continuous: The encroacher must maintain continuous use of the property.
- Hostile: The encroacher did not get permission.
- Open: The encroachment must be obvious (you can see it).
- Actual: It truly is an encroachment as shown by a survey that depicts boundaries.
- Exclusive: The encroacher acts as if they own the area they are encroaching upon.
In defense of an encroachment, the encroacher might not have known they were encroaching. The encroacher could have been misinformed regarding land boundaries. In the case where you didn't know you encroached but later found out, you might want to come to a solution that everyone can live with, even if it means removing the encroachment.
Sometimes encroachments are intentional. Some people might want to see what they can get away with. That's probably not a good idea. In the case where someone is deliberately encroaching on a person's real property, or on common land, and won't do anything about it, that person will likely be sued. More on that below.
Encroachments vs. easements
Both an encroachment and an easement involve people taking over a part of someone else's property. The difference is that an encroachment is unauthorized whereas an easement is authorized.
With easements, there's typically a reason for accessing an owner's property. For example, utility companies often have an easement to lay cable, gas, and utility lines at the edge of people's property. They can do this without getting permission because they are typically granted an easement that gives them access.
An easement does not give ownership to the other party; it merely grants a right to use a section of the land. Another example would be giving a neighbor the right to walk through your land to access a shared beach, or perhaps you need to cross through your neighbor's land to access your own property. People are typically granted easements to do these sorts of things.
How to know if an encroachment takes place
All property has a legal description that is recognized by a court of law. This legal description is more encompassing than a street address description because a legal description gives the exact boundaries of the lot. This information can be found in a home's deed. A surveyor accesses this information and can then locate a property's boundaries.
In addition to the survey, people who think someone is encroaching on their land often order a title search. This would show whether any easements or deeds have been granted prior to the new owner's ownership. For example, maybe the new owner's neighbor was granted an easement to use part of the land or was given a deed that granted ownership of a certain piece of property.
Buyers of real estate typically purchase title insurance at the time of purchase. A title search usually discovers any easements or possible deed arrangements on the property, and the potential buyer can then decide whether they still want to buy, or maybe they will buy but for a reduced price. But if something like that were missed, title insurance should kick in, meaning the title company would likely need to pay damages to the new owner who now must deal with a newly discovered and possibly unwanted easement or deed situation.
What can happen if you're encroaching on your neighbor's land?
If the encroachment is minor and your neighbor doesn't mind, you don't need to do anything about it. Keep in mind, however, that if your neighbor wants to sell the property someday, they'll need to disclose to potential buyers the encroachment situation. Not everyone will be happy about it, so most neighbors will probably mind.
Whether or not your neighbor cares about an encroachment on their property, they have every right to challenge your encroachment to get you to rectify the situation. It's their land, after all.
They should first prove that an encroachment exists before confronting you or challenging the encroachment in court. If they have a survey done, and the survey shows an encroachment, they have proof. Here's what can happen if you're encroaching on a neighboring property:
1. The neighbor will probably confront you. They'll likely want to find out whether you knew about the encroachment and are willing to remove it. You might want to consider working with them. It's always best to resolve a problem without going to court.
2. You could try to buy the land from the neighbor. If you don't want to remove the encroachment, you might (if the neighbor agrees) be able to buy the land you're encroaching on. If you both agree to this solution, it's probably best to contact a real estate agent to handle the transaction, since you would be buying real estate.
3. You might receive a letter. The owner of the neighboring property might be thinking of taking you to court if the two of you can't come to an agreement regarding an encroachment situation. Consider trying one more thing at this point to avoid court. Litigation is costly and time-consuming, for you and your neighbor. So unless a large dollar amount is at stake, court might not be worth the trouble for your neighbor. Try offering a settlement or getting them to agree to talk with a mediator.
4. You might need to defend yourself. If nothing works and you are being sued, be prepared to defend yourself. If you're not encroaching, you should be able to get proof of that by having a survey done that shows the property boundaries. Or maybe you have the right to the property through an easement or deed. If, however, your neighbor can prove that you are encroaching, you can probably expect the court to rule against you.
The bottom line
Before your big renovation project, make sure you will not encroach on neighboring property. A tool shed that crosses over to your neighbor's side should be fairly easy to resolve, but a detached garage addition, not so much. If you are accused of encroachment and find yourself in a boundary dispute, determine whether it really is an encroachment by getting a survey done. If it is, it's best to work out a solution with your neighbor before they take you to court.
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