What is Encroachment
Encroachment is a situation in real estate where a property owner violates the property rights of his neighbor by building on or extending a structure to the neighbor's land or property. Encroachment can be a problem along disputed property lines where a person intentionally chooses to violate his neighbor's boundaries, or when a property owner is not aware of his property boundaries.
- Encroachment occurs when a property owner trespasses onto his or her neighbor’s property by building or extending structures too far.
- Structural encroachment occurs when a property owner builds or extends a structure onto public spaces.
- An easement is a similar concept, however these are consensual and fair compensation is typically paid to the legal property owner.
Encroachment brings about a violation of the property rights of the affected property owner. When a property owner trespasses on to his or her neighbor’s property, s/he is said to be encroaching on the neighbor’s property. Trespassing occurs when the property owner enters the grounds of the neighbor or builds a structure that extends past the lawful boundaries that separate both properties. For example, building a fence or retaining wall that crosses property lines, or having a hedge overgrow or a tree limb extend beyond property limits could be seen as encroachment.
Structural encroachment also occurs when a property owner builds or extends a structure onto the public domain such as sidewalks or roads. In most case, sidewalks and residential streets are public property owned by the municipal government, and a property owner who builds a driveway or erects landscape components (such as trees and flowers) that encroach on the public property, may have the structures removed by the government. Furthermore, the property owner may not be compensated for any damages to the property that occur from tearing down his or her structures.
Avoiding Potential Encroachment Issues
Potential homebuyers are advised to avoid properties with encroachment issues. Homebuyers can use existing surveys on the area where the property is located. Property surveys contain information about a property; information which includes directions, public roads, buildings, improvements made to surrounding property, etc. The surveys also disclose whether there are any encroachments on the home for sale or on the neighbor’s home. If the homebuyer does not want to rely on the existing survey information, s/he can obtain the services of a surveyor to conduct new measurements on the home premises.
A property owner may encroach upon his neighbor’s property in an unintentional or intentional manner. A lot of times, unintentional encroachment happens when the property owner is either not aware of valid property lines or has wrong information concerning the extent to which his property lies within legal limits. If the property survey carried out on the home and used by the property owner to carry out building renovations and extensions are invalid, the property owner may unintentionally encroach on his neighbor’s home or land. Since a property survey outlines the physical layouts of a property including the measurement of metes and bounds, wrong information contained in the survey may lead to a physical intrusion on a neighbor’s land. Unintentional encroachment problems are sometimes resolved with a simple conversation between both parties. However, if the disagreement on whether someone’s property right was violated persists, the issue may be taken to court for a resolution.
Encroachment vs. Easement
An encroachment is sometimes confused with easement. An easement is similar to an encroachment in that the activities of a property owner extends to his or her neighbor’s property. However, easements are agreed upon by both parties and compensation is often involved, whereas encroachment is an unauthorized use of the neighbor’s property. An example of an easement can be seen when a property owner, formally or informally, explicitly gives a neighbor permission to access a nearby beach through his property.
While encroachment may occur without the knowledge of the violator, property owners should carry out due diligence before erecting any structures that may fall close to the boundary that separates their property from another. Property owners wishing to make changes near their property lines may want to talk to their neighbors and/or have a land survey done to make sure the work falls within their own property's boundaries.