By Bill Gassett
Property encroachment is a complex and sensitive issue that can arise when a structure, boundary, or improvement from one property crosses over onto another property. This encroachment can result in legal disputes, strained relationships between neighbors, and potential financial losses.
We will delve into the meaning and encroachment definition, the various types of encroachments, and step-by-step methods to effectively deal with property encroachments. Maximum Real Estate Exposure is an in-depth resource on this vital land topic.
In my experience as a Realtor, encroachment can be pretty commonplace. It is a topic that buyers, sellers, and real estate agents should clearly understand. Let's examine what you should know.
Encroachment Meaning and Definition
Encroachment is when a part of one property extends beyond its legal boundary and enters the neighboring property. This can involve physical structures such as fences, walls, buildings, or even landscaping features. Encroachments are typically unintended due to unclear property boundaries, survey errors, or property development negligence.
In legal terms, encroachments violate the property rights of the affected landowner, leading to potential legal actions to resolve the issue. The resolution process requires careful consideration of property laws, local regulations, and negotiation skills.
To be sure there is a violation, hiring a professional land surveyor will be necessary.
Types of Encroachments
There are several types of property encroachments, each with its own set of challenges:
- Structural Encroachments: These involve physical structures, like buildings, sheds, or walls, that extend beyond the property line onto a neighboring property.
- Boundary Encroachments: occur when fences, hedges, or other landscaping features cross over a neighbor's property.
- Subterranean Encroachments involve underground structures extending into a neighboring property, such as pipelines or foundations.
- Aerial Encroachments: Aerial encroachments involve structures like overhanging balconies, eaves, or building parts extending into the airspace of another property.
How to Deal With Property Encroachments
Resolving property encroachments requires a methodical approach and, in many cases, legal intervention. Here's a step-by-step guide to handling property encroachments:
- Document and Verify: If you suspect an encroachment, gather all property-related documents, including surveys, deeds, and property plans. Verify the property lines and boundaries accurately.
- Communication: Initiate a respectful and open conversation with the neighbor responsible for the encroachment. They might not be aware of the issue and may be willing to cooperate in finding a solution.
- Seek Legal Advice: If communication fails, consult a real estate attorney specializing in property disputes. They can provide expert advice on the legal aspects of the situation and guide you through the process.
- Mediation: In some cases, a neutral third party, such as a mediator, can facilitate a discussion between the parties involved, helping them reach an agreeable resolution.
- Title Insurance: Check if your property title insurance covers encroachments. This can provide financial protection in case legal action is necessary.
- Property Survey: Conduct a new property survey to accurately determine the boundaries and extent of the encroachment. This survey can serve as valuable evidence in legal proceedings.
- Negotiation: Negotiate with the neighbor to reach a mutually acceptable solution. This might involve relocating the encroaching structure, purchasing the affected portion of land, or coming to a compromise.
- Legal Action: If negotiation fails, legal action might be necessary. Your attorney can help file a lawsuit for trespass or seek an injunction to remove the encroachment.
- Settlement or Court Decisions: The legal process may lead to a settlement or a court decision. If a payment is reached, ensure it is appropriately documented and recorded.
- Property Line Adjustment: In some cases, a property line adjustment or easement might be considered a solution, allowing the encroachment to remain within certain conditions.
Options When Dealing With Property Encroachments
Property owners have several options to consider when faced with a property encroachment. The approach will depend on the specific circumstances, the willingness of both parties to cooperate, and the applicable laws and regulations in the jurisdiction.
Here is a more in-depth overview of each option mentioned above on addressing encroachments on a property.
Communication and Negotiation
Open and respectful communication with the neighbor responsible for the encroachment is often the first step. Many encroachments occur unintentionally, and the neighbor might be unaware of the issue. Engaging in a constructive conversation can lead to an amicable resolution.
Negotiation involves discussing possible solutions, such as adjusting the encroaching structure, agreeing on a land swap, or compensating the affected property owner for the encroached-upon area.
Mediation
If direct communication proves challenging, involving a neutral third party through mediation can be beneficial. A professional mediator can facilitate discussions between the parties involved, guiding them toward a compromise that satisfies both sides.
Mediation can help maintain relationships and avoid costly legal proceedings.
Property Survey and Documentation
Conducting an updated property survey is crucial in accurately determining the extent of the encroachment. The survey will provide clear evidence of the boundary lines, which can be helpful in negotiation or legal proceedings. Sometimes, mistakes are made because they have relied on a plot plan vs. a survey.
Proper documentation, including photographs and written records, can support your case and provide visual evidence of the encroachment.
Title Insurance
Check whether your property title insurance policy covers encroachments. Some policies offer coverage for losses due to boundary disputes or encroachments, providing financial protection and legal assistance in disputes.
Property Line Adjustment or Easement
When both parties are open to a compromise, a property line adjustment or an easement may be considered. A property line adjustment formally changes the property boundaries to accommodate the encroachment.
At the same time, an easement grants a specific right to the encroaching party, such as access to a specific portion of land. These options can be formalized legally and must be agreed upon by both parties.
Legal Action
Legal action might become necessary if all attempts at resolution fail. Consult with a real estate attorney to understand the legal options available in your jurisdiction. You might file a lawsuit for trespass or seek an injunction to remove the encroachment. Legal action can be time-consuming and costly, but it may be the only viable solution when other approaches fail.
Settlement Agreements
In some cases, parties involved in an encroachment dispute may choose to reach a settlement agreement. This agreement outlines the terms and conditions under which the encroachment will be addressed. It's crucial to ensure that the settlement agreement is thorough, legally sound, and adequately documented to avoid future disputes.
Final Thoughts
Dealing with property encroachments requires clear communication, legal understanding, and negotiation skills. It's essential to approach the situation patiently and willing to find an amicable resolution. By understanding the meaning, definition, and types of encroachments and following the step-by-step guide outlined above, property owners can navigate the complex process of dealing with property encroachments while minimizing stress and potential losses.
