Real Estate Encroachment

Property Management Blog

Being a real estate investor is not easy; many responsibilities are also associated with this job. When you pay the down payment and close the deal, it begins a new journey, which can be full of challenges. A challenge that you may face is real estate encroachment. Here we are discussing some basic details about this problem. 

What is Encroachment?

When you buy a property, there is a line between your property and your neighbor's. Everything belongs to you on one side of the line, and on the other side, everything belongs to your neighbor. If you cross the line to the neighbor's area or he crosses the line to your area, it is called encroachment. Encroachment is the intrusion on the other's property without his permission. 

If you trespass public land, it will also be called encroachment. There can be many forms of encroachment. For instance, if the patio deck extends to community land or plants on your property are blocking the way. If someone builds on your property or extends the structure onto it, it will also be called encroachment. Similarly, any trespassing activity will also be considered encroachment. 

Types of Encroachment

Real estate Encroachment can be divided into two different categories. 

  1. Nuisance: When encroachment concerns airspace, it is called a nuisance. Overhanging branches of trees and structures blocking sunlight for solar panels is a nuisance. 

  2. Trespass: When there is a physical intrusion to the land, it is termed trespass. The fence or shed on the neighbor's land is an example of trespass. 

Why must landowners understand encroachment?

Surveyors are the professionals who not only determine the value of the property but also set boundaries. When you contact a lender to get a loan, he will ask for a land survey to ensure that the money you want matches the property's value. After the survey, encroachment can also be easily identified. If you know what encroachment is, you can avoid all the encroachment-related disputes as a landowner. 

What is the legal status of property encroachment?

If we talk about the legal status of encroachment, it violates property rights, so it is not legal. However, if the encroachment is in place for many years, and an encroaching person can claim the right of property by using his right of adverse possession. For that, the duration of encroachment should be more than seven years. The time frame may vary depending on jurisdictions. 

In case of adverse possession, it must have the following features

  • Hostile: Possession of property must comply with without any permission. 

  • Continuous: Property must be in continuous use. 

  • Open: Encroachment should not be hidden. 

  • Highlighted in the survey: Encroachment must be real and highlighted. 

  • Exclusive: A person encroaching the land must use it as his land. 

Encroachment can be innocent too.

There is another side of the picture too. Encroachment is not always hostile, but it can be innocent as well. Encroachers may have no idea that the land he uses is not his. He can be misinformed about the boundaries of his land. In this case, the matter can be mutually discussed between the two parties, and they can find a solution. 

However, if the encroachment was intentional, the encroacher must face legal ramifications. The landowner can sue him for infringing on his property. 

Encroachment or Easement

Both terms are nearly the same, as both are about using the property of the other. However, one is legal, and the other is illegal. 

An easement is an authorized use of someone’s property having a valid reason for that. For easement, permission is not required. Laying utility lines and cables along the edge of the neighbor's property are examples of the easement. People having vacation homes on beaches allow their neighbors to use their yards to access the beach. The easement is not ownership of the property; it is just permission to use a part of someone’s property. 

Can we identify encroachment?

A property deed is a document which describes the boundaries of your property. You can also contact a surveyor who can accurately define the boundaries of your property. If you doubt that someone is encroaching on your land, you can also do a title search. It will identify whether permission was granted for the use or not by the previous owner. Moreover, your neighbor might own that piece of land he is using. You can buy title insurance when you plan to invest in real estate. It will reveal easements, if any, and it will be easier for you to decide if you want to buy the property or not. If there is an encroachment, you can negotiate the price and get a discounted deal. 

Buying an encroached house

If you have brought the house and know that it has an encroachment, you have no objection to encroachment. Encroachments can be minor and major. 

Minor encroachments: Minor encroachments do not affect the property. An outdoor shed, a fence, and a dog house are a few examples of minor encroachments. It might belong to the seller and cross onto the neighboring property and vice versa. 

Major Encroachments: substantial encroachment falls under the category of major encroachment. Part of the house and garage are examples of this encroachment. Consequences can be serious for this kind of intrusion. The result of this encroachment can be payment of damage or the removal of the structure. The landowner can also sue the encroacher. 

Selling an encroached house. 

You must disclose the encroachment to the prospective buyers to avoid future problems. It will also build trust between the two parties. Some common property disputes are mentioned here. 

  • The shared driveway between two properties

  • Properties on a private road

  • Irregular shape plots

These disputes can cause problems for the buyer, particularly if he wants to reconstruct in the future. 

You can remove the encroachment if it is a nuisance through legal means. However, there are some other ways to handle the situation. The best solution is to negotiate with the neighbor and solve the problem. 

If you’d like to talk more about property management, or you need help with Everest Property Management, please contact us at Everest Realty.

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