Encroachment In Real Estate: 11 Things (2023) You Must Know (2024)

When people think of putting up a fence, building a shed, or erecting a large structure on their property, they often don’t consider the fact that they could be placing an encroachment on their neighbor’s real estate.

Land boundaries are simply, “What you see is what you get,” right?

There’s no reason to worry that they could cause issues down the road or cause you to end up in court.

WRONG.

If you’re not careful, you may be setting yourself up for a problem if your structure ends up on your neighbor’s property.

We’re talking about encroachment in real estate.

In this blog, we’ll discuss what that means and how that can impact your property.

Here are the top things you need to know.

1. What is encroachment in real estate?

An encroachment refers to a situation where one property owner builds or extends something on their neighbor’s property.

Often, encroachment is a problem along disputed property lines, where a person intentionally chooses to violate his neighbors’ boundaries.

It can also occur when a property owner is not aware of the property boundaries.

2. What are the types of encroachments?

There are two types of encroachments:

Trespass:

This type of encroachment happens when there is intrusion onto physical land.

For example, if your neighbor’s fence or shed is placed partially on your property, then it would be a trespass encroachment.

An encroachment where a physical structure is built on a neighbor’s property is also called a structural encroachment.

Nuisance:

This type of encroachment applies to airspace.

Imagine a tree where branches hang over into another’s yard.

This is a nuisance encroachment.

3. Are encroachments legal?

While encroachments may sound harmless (especially nuisance encroachments), you’re violating someone else’s property rights by encroaching on their real estate.

Thus, they are illegal.

However, you can claim the right to the encroachment through adverse possession.

Although keep in mind, the following criteria must be in place for between 7 to 20 years (depending on the jurisdiction) for adverse possession to take place.

Continuous:

The encroacher must maintain continuous use of the property.

Hostile:

The encroacher must be doing it against the wishes of the property owner.

In other words, they must not have gotten permission.

Open:

The encroachment must be obvious (you can see it).

Actual:

The encroachment must be shown by a land survey that depicts the actual boundaries.

The property owner on whose property the encroachment is located cannot simply claim that it is their land.

They must demonstrate it.

Exclusive:

The encroacher must act as if they own the area they are encroaching up.

4. Can an encroachment be innocent?

In some cases, encroachments are intentional.

The individual wants to see what they can get away with and deliberately encroach on someone’s land.

The outcome?

They end up getting sued.

However, there are absolutely cases where encroachments are entirely innocent.

The encroacher will simply have misinformation about the land boundaries and getting a land survey will help resolve the situation for everyone involved.

5. Why is it important to understand encroachment as a landowner?

Property and land surveys, performed by professional surveyors, are a fairly typical yet essential part of home and land ownership.

These help you determine the property value and establish property lines and boundaries.

Mortgage lenders require you to get a survey to ensure that the loan matches the property’s value.

Thus, most property owners will get their first survey prior to closing.

If during this time an encroachment is identified, then you may have to go through the process of resolving any disputes or encroachments.

6. What is the difference between an encroachment and easem*nt?

Encroachments and easem*nts are sometimes compared because they both involve people taking over a part of someone else’s real estate.

Here’s the key difference:

Encroachment = unauthorized

Easem*nt = authorized

With an easem*nt, you don’t grant ownership of your land to another party.

You merely grant access to use a right of that section of land.

For example, if you wanted to allow your neighbor to cross a section of your land to get out to the road, then you could do that by granting an easem*nt.

Another example is granting an easem*nt to a utility company.

Sometimes they require one to lay cable, gas, or utility lines at the edge of someone’s property.

Either way, these easem*nts are granted for a specific purpose and with the knowledge that it is occurring.

On the other hand, encroachments occur without consent, and can violate the landowner’s property rights.

For more information on easem*nts, you can check out our article on Road Easem*nts.

7. What does an encroachment look like?

Thus far, we’ve spoken about encroachments in relatively vague terms, but you may be wondering, “What does an encroachment actually look like? Could I be encroaching on my neighbor’s land without even realizing it?”

To give you an idea of what an encroachment looks like, we’ve created a list of common encroachment issues that you may see or encounter.

Someone building directly on your property

Someone building a structure that extends onto your property

Someone routinely trespassing on your property

Someone abusing a valid easem*nt

Above, we noted that an easem*nt is an authorized and legal means of allowing another person access to your land.

This is under the assumption that they are progressing to another structure.

However, you may feel that someone is taking advantage of and abusing a valid easem*nt that is in place.

For example, they may routinely drive through another section of your property instead of the established easem*nt.

This can make a homeowner’s life difficult and could be considered an encroachment.

8. What special considerations come into place with encroachment?

The land survey is intended to lay out the physical boundaries of the property.

However, wrong information can be contained in the survey as well, and this could lead to a physical intrusion on a neighbor’s land.

Thus, it is especially important for property owners to carry out their own due diligence and not just inherit information from previous property owners.

Before you erect any structures that fall close to boundary lines, you should make sure that you have an accurate idea of where the boundary lies.

Additionally, if you wish to make changes near your property lines, make sure you discuss these with your neighbors or have an additional land survey done to ensure that all your work is done legally.

9. What happens with encroachment problems at the time of sale?

Encroachments don’t always impact your life in a big way.

If your neighbor’s fence or bush isn’t in exactly the right spot, or they tend to use a section of your yard in a way that doesn’t bother you, what does it matter?

You’re friendly with them, and they can practically assume permission.

The simple truth is that it doesn’t bother you, and it doesn’t impact you.

However, encroachments can make it hard to establish property lines, and they can create new title problems.

Thus, potential buyers will likely take issue with them.

Additionally, many lenders require property surveys before you can sell your real estate, and any encroachments will be noted during this time.

So, keep in mind that even if something doesn’t bother you, it will likely be a pain when it comes to selling the property.

Don’t let an encroachment complicate your ability to sell your property.

In the end, it can even lower the amount you’re offered!

10. How do I know if my land is being encroached upon?

Properties have legal descriptions that are recognized by a court of law.

This legal description goes beyond just your street address and gives the exact boundaries of a lot.

To find this information, look at your property’s deed or contact a land surveyor.

If you think someone is encroaching on your land, you can also order a title search.

This is helpful because it shows whether any easem*nts or deeds have been granted prior to the new owner’s ownership.

Often, this is most helpful before you buy a property because then the potential buyer can decide whether they still want to buy.

11. What happens if I’m encroaching on my neighbor’s land?

“Help! I didn’t mean to, but I think I’m encroaching on my neighbor’s land. What do I do?”

In all honesty, the answer depends on who your neighbor is.

The easiest outcome would be absolutely nothing.

If the encroachment is minor and your neighbor doesn’t mind that it’s occurring, then you may not need to do anything about it at all.

However, this might not be your neighbor’s take, and even if it is initially, then it may not be forever.

If your neighbor ever wants to sell their property, then you’ll need to disclose the encroachment situation to the potential buyers.

Odds are that they’ll want to have full use of their land and will challenge your encroachment to get you to rectify the situation.

The first step on their end should be proving that the encroachment itself exists in the first place.

Even if you think the encroachment exists, no one really knows until there’s been a land survey and it demonstrates an encroachment.

After all, even if they went to court, they would need to have a land survey done in order to have proof.

If they do prove that you’re encroaching on their land, here’s what will likely happen.

You talk to your neighbor:

The neighbor may want to know whether you knew about the encroachment all of this time and whether you’re willing to remove it.

Keep in mind that it’s often better to settle these types of issues outside of court.

The best scenario is working together.

If it’s a smaller problem that can be fixed, you probably don’t want to pay for the legal counsel that will be required to address the issue in court.

A few common solutions include:

• Removing the encroaching structure
• Executing an easem*nt giving you the right to continue using a portion of your neighbor’s property for a specific use
• Executing a lot line adjustment to bring the encroachment onto your property.

You may try to buy the land:

Depending on what the encroachment is, it may not be simple to remove.

So, you may offer to buy the land.

If the neighbor agrees, then this is a simple solution that can also make both parties happy.

We recommend contacting a real estate attorney to help handle this transaction and make sure you have everything in order.

You might receive a letter:

If the two of you can’t come to an agreement out of court then the owner of the neighboring property may decide to sue.

If at all possible, try avoiding court.

Because litigation is costly and time-consuming, it isn’t in everyone’s best interest.

Plus, you have to live next to this person for the foreseeable future.

Try offering a settlement or talking with a mediator before going to court.

You might need to defend yourself:

The worst-case scenario is going to court.

Most likely, this will be a quiet title suit, which is designed to determine ownership over the real estate in question.

If your neighbor has evidence that you are encroaching on their land, then you can expect the court to rule against you.

If you’re not encroaching, you should be able to get proof of this by having a survey done that shows the property boundaries.

12. Will my neighbor become the owner of the part of the building that encroaches on their real estate?

One interesting question that is often raised is whether the neighbor whose land is encroached upon will come to own the structure that is on their land.

The answer is no.

Instead, the encroachment will be viewed as an act of trespass and that needs to be reconciled.

13. Should I hire a lawyer to help resolve my real estate encroachment issues?

Because encroachment issues involving property can become complicated, it is generally beneficial to have a real estate lawyer help you if you think you’re going to pursue legal action or if you’ve committed encroachment on your neighbor’s land.

Property law is complicated – in part because it varies according to the state.

Having an experienced attorney who can research on your behalf and with whom you can discuss your rights is essential.

Final thoughts

Sometimes conflict is unavoidable.

If you’ve encroached on your neighbor’s land or they’ve encroached on yours, it’s up to you to get it sorted out.

Deal with encroachments sooner rather than later so it doesn’t impact your home or land when you try to sell.

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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.