What Can You Do About an Encroachment?

In real estate, an encroachment is when another property owner puts up a structure that intrudes on (or over) your land. For example, your neighbor builds a shed partially over your property line.

It could also happen if a neighbor expands their house so that a porch ends up on your property. This is a structural encroachment. The same is true if you build an extension to your house that expands your space onto your neighbor's land.

Encroachments are a common cause of neighbor disputes. 

Encroachments: A Homeowner's Nightmare

Encroachments are among the toughest property disputes homeowners or landowners can face. Comparable to trespassing, encroachment constitutes an invasion of space. You can address encroachments through civil means.

Minor Encroachments

Minor encroachments happen often and may not be grounds for legal action.

Below are examples of minor encroachments:

• Tree branches
• Large plants from your neighbor's land growing onto yours
• Poorly executed landscaping, resulting in greenery spilling over onto your property

Depending on the circumstances, these issues are not likely to cause danger or damage to your property. Solving the problem may be as simple as asking the neighbor to remove the foliage or removing it yourself. Or, you may choose to ignore the mild annoyance if the encroachment is not likely to cause other problems. 

Major Encroachments

More severe encroachments are far likelier to result in legal action. According to legal descriptions of major encroachments, the encroaching structure must result in quantifiable injury or damage to your piece of land.

Examples of major encroachments include:

• Fencing that wanders beyond the property line
• Driveways
• Utility installations 
• Balconies, patios, and add-on structures
• Sheds and children's playsets
• Large landscaping features, such as fountains and artificial ponds

Legally speaking, property encroachment issues arise because of how they interfere with ownership rights. They disturb an owner's right to quiet enjoyment of their land. That's why encroachments often create legal problems for the neighbors who cause them.

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 goodwill 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 they can consider the issue as part of their purchasing decision.

Real estate encroachments are serious matters. They can result in tense property disputes between neighbors. Both parties may be facing high stakes affecting their property.

Remedies for an Encroachment

Fortunately, there are a few ways to handle an encroachment issue.

Before you do anything, make sure you know your and your neighbor's property boundaries. You do not want to cause any ill will over mistaken boundaries. The legal way to determine your and a neighbor's property is to have a land survey of the real property.

Negotiate a Solution Informally

First, you should talk to your neighbors. 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. It can save you 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 for an easement or a revocable license to use your property. This can prevent a later claim of adverse possession.

Redefine Property Boundaries

Say your neighbor is unable or unwilling to remove the encroachment or encumbrance, but they are otherwise open to resolving the issue. You may consider selling them the encroached portion of your property. 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. Contacting your mortgage lender before such a sale is usually a good idea. This helps ensure 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 you need to get all your documents in order.

Go to Court for Encroachment Actions

If all else fails, you may need to go to court to get rid of an encroachment. In many cases, you must show that:

• You actually own the property
• The neighbor is using the land improperly, and the property should be removed

This first goal is accomplished through what is known as a "quiet title" action. The second is done through what is often referred to as an "ejectment action."

This is a long process that does not encourage a good relationship with your neighbors. To make matters worse, you might lose the case.

Don't Wait To Address an Encroachment

If your neighbor has been improperly using your land for some time, they could succeed in an adverse possession action. More likely, the court may grant them 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 delicate. Large amounts of money and strong emotions can make encroachment problems and other property issues volatile. 

Work with a skilled local attorney proficient in real estate law to resolve your major encroachment matters. It's important to know your legal rights, and an attorney can help.