An “encroachment” is a phrase used in property law that refers to when one property owner constructs or expands a structure to the point that it reaches their neighbor’s adjoining property or land. Doing so will result in a breach of their neighbor’s property rights.
In other words, unless there is an easement or the parties already have an agreement in place, no one has the legal right to build any structure on their land that will extend beyond their property’s boundaries and infringe upon that of a neighbor’s land no matter how small.
This principle is true regardless of whether the encroachment is above or below the land’s surface.
In addition, an ongoing encroachment is deemed to be both an action for trespass and a private nuisance at common law. However, when it comes to an actual lawsuit, states differ regarding who must be aware of the encroachment and how each state addresses the issue of removal.
Lastly, although private parties bring most encroachment lawsuits, people can encroach upon public property, such as building or extending a structure onto a street or sidewalk. The government will not need consent to remove that part of the structure in such a case. The government will also not need to pay for any harm they caused during the removal process.
Put simply; an encroachment is when another individual puts up a structure that intrudes on (or over) your land. This problem might arise if one of your neighbors were to build a shed on your property or expand his house, so a porch ends up on your property.
You might determine that your neighbor’s encroachment doesn’t bother you and do nothing about it. This option has the advantage of keeping goodwill between you and your neighbor. Nevertheless, suppose you ever want to sell your property. In that case, you will need to disclose the encroachment to any potential buyers to consider the issue as part of their purchasing decision.
Remedies for an Encroachment
Fortunately, there are several ways to address encroachment. However, before you do anything, make sure you understand your property’s boundaries. You are about to begin dialogues with your neighbors and do not want to cause any ill will over false boundaries.
To begin with, you can and probably should speak to your neighbor about it. He might be able to move the structure, or you might come to some alternate understanding. Resolving any conflicts out of court can save both of you legal fees, as well as the pressure of hiring lawyers and going to court. If you and your neighbor choose to leave the encroachment in place, you may consider providing them with written permission to use your property. This can stop a later claim of adverse possession.
Suppose your neighbor is unable or unwilling to remove the encroachment but is otherwise open to resolving the issue. In that case, you may wish to consider selling the encroached-upon property to him. That way, you get some money for the loss of your property, and your neighbor gets to use the land without worry. It is usually a good idea to contact your mortgage lender before such a sale to make sure all the land records are accurate and up to date. A local real estate lawyer can help you get all these documents in order.
If all else fails, going to court may be needed to remove the encroachment. In many cases, you would need to prove two things:
- That you own the property; and
- That the neighbor is misusing the land and should be removed.
This first goal is accomplished through a “quiet title” action, while the second is done through an “ejectment action.” This is a lengthy process and usually does not promote a good relationship with your neighbors. To make matters more sinister, you might lose. If your neighbor has been improperly using your land for some time, he could succeed in an adverse possession action or, more likely, get the court to grant him the right to limited use of the property (known as a “prescriptive easement”).
What Happens If My Contractor Encroaches on My Neighbor’s Property?
Suppose a landowner determines they want to construct or extend a structure on their property. In that case, they cannot shift the liability to their contractor in the event of an encroachment lawsuit. The reason for this is that the location of a building is the property owner’s duty.
Therefore, the property owner is the one who will be held responsible for any encroachments of the structure induced by the building contractor. After all, the contractor is hired as an employee at the owner’s command in such a case.
Will My Neighbor Become the Owner of the Part of the Building that Encroaches?
A neighbor will not own the part of a structure that infringes on their land. Instead, the encroachment will be viewed as an act of trespass.
Also, although the neighbor will sue that person for trespass, they will not automatically gain legal title to the portion of the building that is now on their land. They will either have to purchase it or obtain it through adverse possession to gain the legal title.
Can a Tree be an Encroachment?
When tree branches extend over adjoining land plots, they are usually deemed a nuisance. In such circumstances, the landowner that the tree is encroaching on can cut down any branches hanging over onto their property.
To prevent future disputes from occurring, it may be in that person’s best interest to politely ask their neighbor before chopping down any encroaching branches. However, since the property being encroached on belongs to them, they don’t need to ask or tell the other party before doing so.
Can I Collect Damages for an Encroachment on My Land?
Since an encroachment is seen as an invasion of a person’s property rights, that person may recover a damages award for any harm suffered due to the offending encroachment. The amount of damages a person can receive will largely depend on whether the harm done to the land was enduring or temporary.
If the court finds that the harm is permanent, then the damages award will be the difference between the property’s value immediately before and immediately after the injury.
On the other hand, if the harm is only temporary, the amount received will be the reasonable cost of repairs needed to restore the property to its original condition, plus the loss to the owner of not using and enjoying their property.
Can I Remove the Encroachment Myself?
As previously mentioned, an encroachment is also considered a private nuisance. Therefore, a landowner generally has the right to remove the encroachment themselves.
Do I Need to Hire a Lawyer to Help Resolve My Encroachment Issue?
Issues involving property law can become fairly complicated. Part of the reason they pose so many challenges is that property law usually varies according to the state. Thus, what is approved or recognized by one state law, may not be the same rule applied in your state.
Therefore, if you face issues involving an encroachment on your land, or if you have committed encroachment upon your neighbor’s land, you may want to speak to a local real estate attorney for assistance.
An experienced real estate attorney can research the laws in your area and discuss your rights as a property owner. Your lawyer can also help you file an action against your neighbor or can try to defend you from the legal consequences of an encroachment lawsuit.
