Encroachment: Definition And What It Means In Real Estate

Coming up with a down payment and closing on your house is only the beginning of homeownership. Once you move in and the property starts to feel like home, many other challenges can arise.

For instance, some homeowners find that relationships with neighbors can lead to stress and frustration. One potential source of this is encroachment.

Encroachment comes about when a homeowner seems to not notice – or care – that their tree, garden or shed – to name a few examples – is encroaching on their neighbor’s property. If left unresolved, encroachment can result in a host of issues, so it’s better to address it as soon as possible.

Encroachment in real estate is defined as one property owner violating their neighbor’s rights by building or extending some feature of their property that crosses over property lines onto their neighbor’s property.

Sometimes the encroachment is intentional. Structural encroachment, for instance, occurs when a neighbor deliberately builds property on land they don’t own. However, this isn’t always the case, especially when the exact location of the property lines is unclear.

While encroachment may seem harmless, it can lead to liability issues, damage to your property, and problems at the time of sale.

Examples Of Encroachment

So, how do you know if your neighbor is encroaching on your property? Here are some encroachment examples to watch out for:

• Your neighbor builds a fence, and it extends onto your land.
• A structural addition to your neighbor’s home extends past the legal property boundaries.
• An overgrown garden, hedge or other landscaping feature crosses onto your land.

When encroachment is only causing a minor issue, you might choose to not worry about it since it’s not having a major impact. But even if you aren’t facing encroachment issues in your day-to-day life, they can be problematic when you decide to sell your home. Here are some negative effects that could stem from encroachment on real estate:

• Title issues: Because encroachment can make it hard to establish property lines, it can create title issues if you’re trying to sell your home. Many states require property surveys before you can sell your home, and any encroachment will be noted.
• Trouble selling the home: While the overgrown hedge or tree overhanging your yard may not bother you, it may bother the person who’s interested in buying your home.
• A decreased sale price: Along with complicating your ability to sell your home, encroachment could lower the amount you end up receiving once the home sells.

It’s easy to confuse a real estate encroachment with an easement. Both involve a homeowner making an extension onto their neighbor’s land, but both parties agree to an easement.

Easements often occur because your neighbor needs to access some part of your property for practical reasons. For instance, they may need to cross your backyard to get to a nearby beach, and you grant them permission to do so.

One of the problems with unaddressed encroachments is that they can become prescriptive easements. A prescriptive easement is created when the encroacher – perhaps a neighbor or trespasser – openly uses a portion of your property without your knowledge or consent, and it grants them a legal right to use your land if their encroachment is unreported over a period of time. The time frame and specific requirements to turn an encroachment into an easement depend on state laws.

If an encroachment goes unaddressed for long enough, it can also create an unrecorded encumbrance on your land. This means your neighbor now holds a right to some aspect of your property.

If you believe one of your neighbors is infringing on your land, it’s best to politely handle the situation before letting too much time pass. Most encroachments can be resolved amicably and in a way that’s satisfactory to both parties.

Below are three steps you can pursue when dealing with an encroachment issue.

Talk With Your Neighbor

It’s wise to start by talking with your neighbor and explaining your concerns. This is always ideal, especially if the encroachment is minor and can be easily addressed, such as in the instance of an overhanging tree branch.

Try to approach the conversation with the assumption that the encroachment is unintentional. This attitude will likely help you seem friendlier when confronting your neighbor.

Sell Your Land, Or An Easement On Your Land, To Your Neighbor

Another option for homeowners is to sell an easement, or the affected portion of the land, directly to their neighbor. This way, once the property clerk records the transaction, all uncertainty disappears and any future problems are averted.

Take Your Neighbor To Court

If the previous two options don’t work and your neighbor isn’t willing to resolve the issue, you can take them to court. This approach is always the least desirable path because it’s slow, expensive and may create lingering tension between you and your neighbor.

And, unfortunately, taking your neighbor to court won’t necessarily resolve the issue in a favorable way since the court could determine that your neighbor’s trespass on your land is legitimate.

The court could decide that it constitutes a prescriptive easement, which then needs to be recorded. If the court rules that your neighbor is unlawfully trespassing on your land, the court will order your neighbor to remove the offending feature.

Most people don’t like conflict with their neighbors, but it’s always a possibility. Intentional and unintentional encroachments happen, and it’s important to deal with the issue as soon as you notice it.

Ignoring encroachment can result in a prescriptive easement, and you can’t do much at that point. Learn more about prescriptive easements and how to avoid them.