What is encroachment?
Finding a new home is rarely easy. But finally, after enduring a long search, dealing with closing costs and more, the home you wanted so badly is yours. You have the deed; you are the owner. Nothing could go wrong with the property – right?
Amid all the busywork of buying a house, you probably never thought about encroachments. Outside of professional football, you probably have never even heard of the term before, with all of your focus on mortgage rates and title insurance. But now that you own property next to a neighbor (or neighbors), encroachment may become a hot topic that you will want to understand.
What is encroachment?
To understand the term encroachment in real estate, you first must know your property boundaries. Check the boundaries of your lot on your survey. Once you do, you can judge whether your property is being encroached by a neighbor.
For example, if a neighbor’s structure is actually on your property, that’s a major encroachment (unless you’ve given your neighbor permission to place it there). The neighbor may have made this move intentionally or unintentionally, but either way, it meets the encroachment definition. The intrusive object could be as small as a shed or as big as an upstairs deck that hovers onto your property. Building a fence that is placed a few feet over the proper boundary line is a common example (in fact, a shared fence with a neighbor is a house hunting warning sign).
Encroachment does not have to involve a structure. A tree can constitute a minor encroachment, as can a garden or even an overgrown hedge. Your neighbor is essentially trespassing on your property without permission, which can prevent you from doing what you’d like on your property. Their encroachment can negatively impact the value of your property.
Though the examples above relate to private property, encroachment can take place on public land as well.
Why does encroachment happen?
Encroachment can happen because a homeowner lacks a property survey or may even possess an outdated one. A homeowner may just assume that property is his or hers based on a long-ago memory (which could be faulty) of boundaries when the property was purchased. A contractor may have misunderstood the instructions about exactly where an addition should begin and end. Though the reasons why it can happen vary, there is no doubt it must be addressed to protect the wronged homeowner.
What’s the best way to deal with encroachments?
There are various options to address encroachments. Among the best ones are:
Setting up a professional land survey
While your city and the permit should have helped, a licensed, non-biased survey can shed light on the extent of the issue at hand. The professional surveyor will be able to tell how much land is being encroached upon and can research how long there’s been a problem. The survey might even uncover that there is no problem at all, and that the structure in question rests on your neighbor’s property.
Negotiate with your neighbor
This is an especially good option if you get along with your neighbor. This method of resolving the issue can save time and money, especially if the alternative is going to court. Given the emotions surrounding private property, an already-solid relationship will foster an honest give-and-take about the situation.
You may decide to sell the piece of land to your neighbor at a fair price to both sides. If you decide to do this, make sure to involve a lawyer to ensure the survey records are correct. Or the neighbor may simply decide to remove whatever is encroaching on your property.
Depending on zoning and setback requirements by the municipal government - you may not be able to just sell off a piece of land. It will have to be re-platted and recorded which takes approval by the governing entity.
Send a letter
If discussions with your neighbor fail, a letter from your attorney suggesting a resolution may reignite talks. Even if you don’t get everything you want in a compromise with your neighbor, it will still be less expensive than heading to court.
Go to court
There are hard-to-fathom stories about homeowners who willingly build on a neighbor’s land without even using permits or those who tear down disputed fences in the middle of the night. If your neighbor has encroached your property and will not listen to a reasonable offer to end the dispute, contact your lawyer to figure out how best to resolve the problem in court. Litigation can be expensive, with lawyer’s fees and court fees, so make sure all other avenues have been exhausted before choosing this route.
Encroachments vs. easements: What’s the difference?
Encroachments and easements are similar terms with one crucial difference: encroachments are unauthorized intrusions on a property, while easements are authorized. In fact, easements – which often are transferred from property owner to property owner – are documented and thus can be referenced to see exactly what the details are, as easements involve an agreement where specific terms were outlined.
Who would request an easement? Often utility companies buy one so they can use the property to install pipes or other materials. Shared driveways can involve an easement. An easement may run across a specific time period, such as 10 years; it may end once the home is sold once, or it could be permanent.
Will title insurance cover encroachments?
In general, title insurance will not cover encroachments. Any encroachments found before the property is bought would be placed in the exceptions section. Unless the encroachments were major and rendered the property unsellable, a typical title insurance policy would not cover them.
Encroachments can be a major headache for homeowners. Though they may be able to negotiate a solution with their neighbors over the structure, garden or other item that is encroaching on their property, sometimes the only resort is to go to court. Whatever the means of solution, these unauthorized intrusions on your property must be addressed, especially when the encroachment is likely creating a negative impact on your property value. When you sell down the line, a home appraisal will not look kindly upon an encroachment that hasn’t been resolved.