What Can You Do About an Encroachment?
Put simply, an encroachment in real estate is when another property owner puts up a structure that intrudes on (or over) your land. This issue might come up if, for example, a neighbor builds a shed that is partially over your property line, or expands his house so that a porch ends up on your property. This is a structural encroachment.
You might decide that your neighbor's type of encroachment doesn't bother you and do nothing about it. This option has the advantage of preserving good will between you and your neighbor. However, if you ever want to sell your home, it may affect the property value. You will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.
Remedies for an Encroachment
Fortunately, there are number of ways to handle an encroachment issue. However, before you do anything, make sure you know where your property boundaries are, and your neighbor's property. You are about to begin discussions with your neighbors, and do not want to cause any ill will over mistaken boundaries. The legal way to determine yours and a neighbor's property is having a land survey of the real property.
- To begin with, you should, talk to your neighbors about it. They might be able to remove the property encroachment, or you might come to some alternate arrangement. Resolving any disputes out of court can save both of you legal fees, as well as the stress of hiring attorneys and going to court. If you and your neighbor decide to leave the encroachment in place, you may consider giving them written permission or a revocable license to use your property. This can prevent a later claim of adverse possession.
- If your neighbor is unable or unwilling to remove the encroachment or encumbrance, but is otherwise open to resolving the issue, you may wish to consider selling the encroached upon portion of your 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.
You may be required to record a new property survey to establish the neighbor's property line. It is usually a good idea to contact your mortgage lender before such a sale, in order to make sure all the land records are accurate and up to date. A local real estate attorney can help you with a corrective deed, title insurance and any additional information to get all your documents in order.
If all else fails, going to court may be required to get rid of an encroachment. In many cases, you would need to show:
- That you actually own the property;
- That the neighbor is using the land improperly and should be removed. This first goal is accomplished through what is known as a "quiet title" action, while the second is done through what is often referred to as an "ejectment action."
- This is a long process and usually (not surprisingly) does not encourage a good relationship with your neighbors. To make matters worse, 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").
Dealing With an Encroachment? Get Expert Help From an Attorney
Asserting your property rights can be a delicate matter. Large amounts of money and a significant emotional attachment make exchanges about encroachment problems and other matters potentially volatile. Get resolution of your major encroachment matters by working with a skilled, local attorney proficient in real estate law today.
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