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Encroachment In Real Estate: What Is It And What Can You Do About It?

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Published on October 1, 2021
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If you’re looking to buy a home, your real estate agent will likely suggest a professional property survey to help identify property lines as well as any existing issues including potential encroachments on your space.

In this article, we’ll go over what an encroachment is, the different types of encroachment, a comparison of encroachments and easements and what you can do if an encroachment causes a hindrance in your home buying process.

Encroachment Issues During A Home Purchase

Even if the encroachment doesn’t necessarily bother you, if you’re looking to purchase a home, there are a couple of things to consider.

Liability

To begin with, if a neighbor builds something on your property and something happens as a result of the use of that structure, you could be liable and have to file a claim against your homeowners insurance. Forgetting the possibility of an injury or significant damage for the moment could result in higher insurance premiums, which is less than desirable.

Resale Value

Also consider the resale value down the line. Even if you’re OK with someone possibly using your property for a specific purpose, it doesn’t mean the next person will be. In addition to infringing on their property rights, an encroachment might force them to pay more for title insurance because they have to ensure the encroaching structure. Encroachments cause title problems because the nature of encroachments makes property boundaries fuzzy.

A potential buyer finding out they may have to deal with an encroachment could choose to pass on buying a property or offer less money, so this is important to think about.

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What Types Of Encroachment Are There?

When it comes to encroachments, the significance of each type can be on a sliding scale. Make yourself familiar with minor, major and structural encroachments to become a well-versed home owner.

Minor Encroachment

Not every potential encroachment needs to cause a huge amount of distress. A few that aren’t likely to have a major impact on getting title insurance or resale value include things like fences, gardens and the like.

An encroachment could even be something as simple as a shrub or tree that has grown beyond your neighbor’s property line. A next door neighbor may have a garden growing right along your property line for years, but things like flowers and vegetables often bring people together rather than cause a problem.

Major Encroachment

Some property encroachment issues should definitely cause a red flag. Construction of a garage or part of a house on your property would fall into this category. Other items that can cause issues are an overhang or a tree branch that extends from your neighbor’s land onto your property. If either of these fall, there’s the potential for major property damage and even serious injury, so it’s something that needs to be considered.

Structural Encroachment

Structural encroachment occurs when a property owner specifically builds something on land they don’t own. This is typically between neighbors, but it could also be between the property owner and a municipality because streets and sidewalks are often the property of the city for the use of the public.

A structural encroachment could be an upstairs deck or balcony that partially overhangs your property or a neighbor’s driveway built to encroach on your property. Garages or sheds would also be included in this category. Depending on your property lines and where they were set up, a neighbor who was having a particularly bad day might ask if your children had a permit to set up their lemonade stand in the neighborhood. It’s not likely, but it could happen because the street is public property.

Encroachment Vs. Easement

The key differences between an encroachment and an easement is mutual neighborly consent and ownership rights. Although the same use of a neighbor’s property can lead to either, both property owners typically agree to an easement, which is legal permission to use, rather than own, someone else’s property.

Encroachment

If your neighbor builds something that’s either partially or wholly on your property without an agreement, it’s considered an encroachment. In fact, illegal encroachment problems that drag on for years may legally allow your neighbor to claim an adverse possession of said property.

If you’re dealing with an encroacher unwilling to concede use of your property, you may want to consult with a lawyer familiar with local code on squatter’s rights as soon as possible. Unlike an easement, adverse possession grants ownership rights to an encroacher.

Easement

An easement also starts with something being built on or above your property. The key distinction here is that the neighbor has gained an agreement to be able to access that portion of the property, often for a specific purpose.

In order to see when an easement might come into play, let’s look at a couple of quick examples.

  1. Prepurchase use: Let’s say your neighbor had built a shed on your property before it was fully developed for residential use. You might agree to an easement granting them access to their shed.
  2. Access use: You might also have a big shared driveway that they use to gain access to their property. This would be another situation where agreement about an easement might be in order.

That said, depending on your state law, a neighbor can still gain legal access to your property without your explicit consent if they’ve used the property for a certain amount of time, in what’s called a prescriptive easement.

What Can I Do About An Encroachment?

If you’re looking to get an encroachment handled when buying or selling a property, there are a few solutions you can try.

Talk To Your Neighbor

Your neighbor may be willing to move whatever is on your property over to theirs if it’s easily moveable, like a garden. Often, a friendly conversation can be enough to resolve the issue.

Sell The Land To Your Neighbor

Another option would be to sell the land that’s being encroached upon by your neighbor to that neighbor. This way, the neighbor doesn’t have to go through the hassle of moving something that may be difficult or impossible to uproot and you still receive some sort of compensation for the portion of your property that you’d be giving up.

If your neighbor decides to buy the land, consult your mortgage lender and/or a real estate attorney so you can be sure that you can do this with accurate land survey records. Your lender also has to be aware because it’s important to remember that your property serves as collateral for any existing mortgage you might have.

Go To Court

If you and your neighbor can’t come to an amicable or fair agreement, the court is always an option. At this point, it’s probably a good idea to get a real estate attorney involved. A judge may have a variety of legal remedies available including granting an easement or making a judgment on the value of the encroached property for the purposes of a sale.

The Bottom Line: Don’t Wait To Deal With Encroachments

We hope that you now understand the basics of encroachments. Ultimately, encroachments need to be dealt with sooner than later and with tact. Give your neighbor the benefit of the doubt when you first broach the subject. Take inventory of how a potential adverse possession or prescriptive easement might affect your property value before coming to an encroachment agreement.  

Before you start knocking on your neighbor’s door, be sure you come prepared with an understanding of all your (and their) property rights.

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Andrew Dehan

Andrew Dehan is a professional writer who writes about real estate and homeownership. He is also a published poet, musician and nature-lover. He lives in metro Detroit with his wife, daughter and dogs.