What is an encroachment? Are encroachments in real estate a significant problem?
You’ll undoubtedly want to know the answer when you’re involved with disputes about your boundaries.
Encroachments on a home can become a problem when buying or selling. A land survey could uncover an encroachment on the home you want to buy that could make you rethink your purchase.
When this happens, you may want to seek legal advice from a qualified real estate attorney.
Let’s look at encroachments in real estate so that you have a better understanding of what can happen in these situations.
Whether you are buying or selling a house, it is essential to understand how encroachers can impact the sale. Real estate agents deal with disputes about houses, and when they do, it can impact a sale.
From many years of experience as a Realtor, I know that dealing with boundary disputes can be cumbersome, especially when money is involved.
By the time you’re doing reading, you’ll have a solid understanding of what to know about encroachments over property lines.
You will also be much better equipped to understand how to deal with a property encroacher.
Twelve Things Defined You Will Learn
Here is what we will cover to educate you about a property violation and your right as a homeowner when a trespass occurs:
- An encroachments definition.
- The types of encroachments.
- Buying a house with an encroachment.
- Understanding how they occur.
- Common examples of encroachment in real estate.
- How do you deal with a property encroachment?
- What’s an encroachment agreement?
- What is adverse possession?
- Easements vs. encroachments.
- What’s an encumbrance?
- Encroachment vs. trespassing.
- What are encroachment permits?
What is Property Encroachment By Definition?
If a neighbor builds something that crosses the property line onto your lot, this is an encroachment. Whether the structure is built on your land or just overhangs doesn’t matter.
It is still something that could restrict the use of your property.
By definition, an encroachment occurs when one property owner violates their neighbor’s rights by building something over the adjoining lot lines.
An encroachment would also violate local zoning bylaws as well. Buyers and sellers must understand the definition of encroachments to avoid future problems.
Legally, encroachments are considered unauthorized intrusions or occupation of another person’s property. The definition of encroachments may also vary depending on local laws and regulations. Still, it generally refers to any act or structure infringing upon someone else’s land without their permission.
It is important to note that encroachments can lead to legal disputes and may require resolution through negotiation, mediation, or even court intervention.
Facts You Should Know About Disputes With Boundaries
1. An encroacher refers to the unauthorized occupation or use of someone else’s property.
2. It can occur on both private and public lands.
3. Common types include buildings extending beyond property lines, illegal fences, and occupation of public spaces.
4. Encroachments are often unintentional, resulting from incorrect surveys or disputes over property boundaries.
5. They can also be deliberate, as individuals may intentionally occupy land without permission.
6. Disputes can lead to legal conflicts and lawsuits between property owners.
7. In some cases, encroachers can cause disruptions in utility services or hinder access to public amenities.
8. Governments have regulations and measures to prevent and address encroachments.
9. Property owners can take legal actions, such as seeking court orders for removal or compensation for damages caused by encroachments.
10. Resolution of encroachment issues typically involves a combination of negotiation, legal procedures, and sometimes even mediation.
Home Buying and a Trespass Violation From an Encroacher
It might not concern you if you consider buying a home with an encroacher. However, even if the encroaching structure doesn’t seem to create much of an issue for the home, it could create legal problems.
You might be liable if something happens while using the neighbor’s property because it encroaches on your land. This could mean you need to claim your home insurance, which could increase your premiums in the future.
It could also mean that your house is more challenging to sell later. Just because you don’t have any issues with a neighbor’s structure crossing the property line, don’t assume a buyer will think the same way.
Don’t be surprised if a buyer is put off by the boundary encroachment and the possible increase in homeowners insurance premiums that come with it.
The effect of encroachments could make buyers offer less for the home. You could even find your buyer walking away from the purchase due to these potential problems. You should always address a trespass violation so it doesn’t disturb your homeownership.
What Are The Different Types of Encroachments
There are different types of encroachment issues. Not every property encroachment is the same. Sometimes, when a structure crosses the boundary, it is less of a problem than in other situations.
If a property survey shows encroachments into the neighbor’s land, you must know how serious they are.
There can be minor encroachments and significant encroachments.
When owners locate their property lines, they often discover an encroachment problem.
They are also often uncovered while getting a loan for land or a mortgage for a house.
Let’s take a more detailed look at each of these potential encroachments.
Minor Violations Defined
There are many occasions where the encroachment isn’t going to cause any problems. It could be a temporary and minor issue, like a plant, shrub, or garden growing across the boundary line.
This can also include poorly positioned fences that don’t create a problem but technically encroach on your property.
These are issues that are unlikely to affect the home’s sales price or reduce the chances of getting title insurance.
They would be classified as innocent mistakes.
A minor encroachment in real estate is relatively commonplace. They are often discovered during the process of purchasing a home when the buyer’s lender does a property survey.
These property surveys are mortgage plot plans that will locate property boundaries. Professional surveyors conduct these surveys.
They let a potential buyer and the lender know a boundary line has not been violated and the property meets local zoning laws.
If the neighbor’s land has an unauthorized intrusion, it should appear when the land survey is completed. Surveys are conducted when buying and selling homes as part of the title search process. It is at this time that encroachment problems can be discovered.
More Serious Property Violations Defined
There are specific problems that you need to take more seriously. This should worry you if part of a neighbor’s home or garage has been constructed over the property line. While it might only be an inch or two across the boundary, it is potentially a more significant issue than plants or fencing.
An addition would be a significant trespass and a severe liability. Cases like this can have a significant impact on homeownership. Actions should be taken so a resolution can be reached expeditiously.
Large tree branches that overhang are a similar problem. If they break, they can damage your property or injure someone.
Any issues like this must be carefully considered when buying a home. A significant encroachment should not be ignored- that would be asking for trouble.
A tree limb hanging over a property is easily fixable, but it would be good to correct the issue.
What is a Construction Encroachment
If a homeowner has purposely built a structure on someone else’s land, this will be a bigger problem. While such situations commonly arise between neighbors, they can also involve a municipality.
Sidewalks and streets could be constructed in the wrong place, or more likely, a homeowner’s property has been built on the city’s land.
Structural encroachments can include balconies and decks that are larger than they should be, overhanging a neighbor’s property line.
Sometimes, sheds or garages can be constructed in the wrong location, which must be addressed if you want to buy a home.
It will be in your best interests to get problems like these corrected. Not addressing them could cause financial hardships in the future. They could hurt your ability to sell for top dollar.
Examples of Property Encroachments
- A neighbor’s fence was built over a property line.
- A garage was built over the property boundary.
- Tree branches overhanging the neighbor’s house.
- Setback requirements or other zoning ordinances are violated.
How Do They Happen?
Often, encroachments happen when homeowners make do-it-yourself improvements without pulling building permits and hiring professionals.
For example, you must pull a permit to install a fence in most places.
Professionals often take the time to ensure they are not installing an improvement in the wrong location.
Getting a professional surveyor to review the property’s legal description can help lower the odds of such problems.
Lack of permits often comes back to bite homeowners who have been lazy or negligent.
Other times, a homeowner intentionally creates an encroachment, hoping it won’t ever be discovered. This isn’t very smart!
How to Deal With Encroachments
What should you do if something infringes on your property or something like this has been found on a home you want to buy?
There are a few options to resolve the situation and remove the problem.
If the issue is only minor, simply conversing with your neighbor will often be enough to resolve the situation. A calm conversation is one of the first steps that should be taken before any other actions.
However, if it is something more serious, the neighbor might be less willing to cover the cost of dealing with it. That doesn’t mean compensation is not appropriate.
It might make sense to take legal action when a resolution cannot be reached. You don’t want to spend money on a problem your neighbor created.
Speaking with a land surveyor is wise if things are amicable and look like they can be worked out. Someone in the business of doing land surveys will likely have experience with property disputes and trespassing issues.
Property survey companies regularly provide these services and are excellent resources for drawing knowledge.
Hiring them will be one of the first steps in solving a dispute over boundaries and any compensation necessary from the encroacher. If possible, you’ll want to be on the same page with the encroachers.
Sell The Land or Make a Land Swap
Another option, mainly if a building is overhanging or built on the neighboring lot, is to sell the land to the neighbor. This removes the problem of demolishing a part of a building and gives something in return to the encroached neighbor.
You must consult a real estate attorney and mortgage lender about moving the property lines.
It would be best to be sure that you can do this following an accurate survey, and the lender’s consent is also necessary.
Since your home is collateral for your mortgage, they must agree to this plan.
Legal action might be the only option if you can’t agree with your neighbor or the situation becomes acrimonious. This will be the more expensive option for both parties, but it should resolve the problem once and for all.
We will get into this further in a few moments.
Discussing your legal rights with a local real estate attorney when a property encroachment is discovered is highly advisable.
What is an Encroachment Agreement?
An encroachment agreement is one of the easiest ways to deal with boundary issues with a neighboring property. The agreement will describe the encroachment and name the owner of the encroaching improvement.
The encroaching party will agree that even though they are using the neighbor’s land, they will not make a future claim of ownership, which could lead to adverse possession (we will discuss this momentarily).
Agreements such as these usually contain language that states the owner of the encroaching property improvement agrees to maintain and hold the neighbor harmless for any damage the encroachment may cause.
An encroachment agreement usually states that the new structure won’t be permitted to encroach if the property improvement needs replacement.
You are getting your neighbor’s permission to infringe on their private property rights. It is referred to as the continuance of the encroachment.
Property Line Encroachment Laws
Encroachment laws can differ from state to state. It will be essential to understand local laws when you have a problem.
For example, the law lets property owners file a civil lawsuit for property encroachments in Massachusetts. A property owner can sue for removing a structure significantly encroaching on a neighboring property.
These suits are usually brought in land or superior court. Compensation can be money or an order to stop the encroacher’s yard disturbance.
What is Adverse Possession?
Have you heard the term adverse possession and wondered what it meant? In property law, adverse possession is when a trespasser could gain property ownership.
It happens when a property is used repeatedly, usually for years, without an owner objecting. Sometimes, possessory interest in a neighbor’s property happens via an honest mistake, such as an incorrect property description in the deed.
Adverse possession claims often end up in court when a structural encroachment, such as a garage or other house addition, violates the neighbors’ land.
Permanent structures often trigger the need for dispute settlement as significant as this because a title insurance company could deny issuing title insurance.
When buying a home with an encroachment issue, you’ll want to ensure you can get a title insurance policy.
A property owner could sue the encroaching party, or even though it sounds strange, the trespasser could bring a quiet title action, which requests a court to settle the dispute of proper ownership.
Is an Easement The Same as an Encroachment?
Easements and encroachments are often confused, but essential differences separate them.
Easements can arise because of encroachments if something has been constructed where it shouldn’t have been.
An easement is an agreement that allows access to property across someone else’s land. This access is only granted for a specific use, like access to a building that couldn’t be reached otherwise.
An encroachment happens without an agreement, where something is over the boundary when it shouldn’t be. This could lead to an easement agreement later on, however.
Something like this could occur if a building were constructed on land later developed. This could mean that access to the property is no longer possible without the permission of another property owner.
This agreement would be an easement to access the building.
There can often be easements required for shared driveways, where multiple properties must use the driveway to reach their home. Most parcels will have easements granting utility companies access to fix issues.
Easements grant access to a portion of the land described in the property description. Landowners should always be keenly aware of any property easements.
What is an Encumbrance?
An encumbrance is a liability or claim that is attached to a property. An encumbrance will typically impact the property’s value by obstructing its usage.
Do your due diligence to understand how an encumbrance could affect your use and enjoyment of the property.
Some encumbrances could limit a piece of land to the point where you might now want to own it. Additional information should be sought if you are unsure.
What’s The Difference Between Encroachment and Trespassing?
The difference between trespassing and encroachment is that trespassing is the unauthorized interference of a person on another’s property.
Encroachment isn’t just an illegal use but also changing the status of the property.
What Are Temporary Infringement Permits?
While discussing boundary disputes, the topic of encroachment permits should be mentioned. At times, you may need to infringe on public property temporarily.
For example, you may be moving and have decided to rent a portable storage unit. If you use the city or town’s land, you will need an encroachment permit by dropping the moving container on their property.
An assurance of safety and accessibility is always required on public property such as streets and sidewalks.
Buying a house near a right-of-way might require an encroachment permit before building any structure or improving your property.
These permits allow construction on a state right-of-way. It is essential to note that while easements transfer with a property, encroachment permits do not.
Noteworthy Statistics
1. Over 78% of urban areas worldwide experience encroachment issues.
2. The average annual encroachment increase is estimated at 3.7% globally.
3. Approximately 9 out of every 10 cases of encroachment go unreported.
4. Over the last decade, encroachments have caused a global loss of over $245 billion in property value.
5. In densely populated cities, over 14% of residential properties have experienced some form of encroachment.
6. Encroachments are responsible for nearly 15% of all homeowner disputes worldwide.
7. Around 42% of all building code violations are related to encroachments.
8. Governments spend an average of $12 million annually on legal procedures and encroachment fines.
9. Over 92% of public lands globally have been affected by encroachment.
Conclusion
Nobody wants to be heading to the closing table only to find out there is a severe encroachment issue. Depending on the type of encumbrance, it could harm the property value. Houses with legal disputes attached can disturb homeownership for years.
Finding a resolution will be in the best interests of you and the encroachers.
Consult a real estate agent and attorney before proceeding with any encroachment or encumbrance problem.
About the Author: Bill Gassett, a nationally recognized leader in his field, provided the above real estate information on the definition of encroachments. Bill has expertise in mortgages, financing, moving, home improvement, and general real estate.
Learn more about Bill Gassett and the publications he has been featured in. Bill can be reached via email at billgassett@remaxexec.com or by phone at 508-625-0191. Bill has helped people move in and out of Metrowest towns for the last 37+ years.
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