Encroachment: Definition And What It Means In Real Estate
Hanna Kielar4-minute read
February 27, 2023
Many people don’t realize that coming up with a down payment and closing on your house is only the beginning of homeownership. Once you move in and begin making the property your own, many other challenges can arise.
For instance, many homeowners are surprised to find that relationships with neighbors can be a source of stress and frustration. And one of the biggest problem areas is often encroachment.
Encroachment means one of your neighbors seems to not notice – or not care – that their tree, garden or shed – to name a few examples – is encroaching on your land. If left unresolved, encroachment can lead to a host of issues, so it’s better to address it sooner rather than later.
What Is Encroachment By Definition?
Encroachment in real estate is defined as one property owner violating their neighbor’s rights by building or extending some feature and crossing onto their neighbor’s property lines.
Sometimes the encroachment is intentional. Structural encroachment, for instance, occurs when a neighbor deliberately builds property on land they don’t own. However, this isn’t often the case, especially when there’s some ambiguity about the exact location of the property lines.
While encroachment may seem harmless, it can lead to liability issues, damage to your property, and problems at the time of sale.
But how do you know if your neighbor is encroaching on your property? Here are some encroachment examples to watch out for:
- Your neighbor builds a fence, and it extends onto your land
- A structural addition to your neighbor’s home extends beyond the legal property boundaries
- An overgrown garden or hedge crosses onto your land
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Encroachment Real Estate Problems
When encroachment is only causing a minor issue, you might overlook it since it’s not having a major impact. But even if you aren’t facing encroachment issues in your day-to-day life, they can be problematic when you decide to sell your home.
Because encroachment can make it hard to establish property lines, it can create title concerns when you’re trying to sell your home. Many states require property surveys before you can sell your home, and any encroachment will be noted.
While the overgrown hedge or tree overhanging your yard may not bother you, it may bother the person who’s interested in buying your home. Along with complicating your ability to sell your home, encroachment could lower the amount you end up receiving once the home is sold.
What Are Encroachments Vs. Easements?
It’s easy to confuse a real estate encroachment with an easement. Both involve a homeowner making an extension onto their neighbor’s land, but an easement is agreed upon by both parties.
Easements often occur because your neighbor needs to access some part of your property for practical reasons. For instance, they may need to cross your backyard to get to a nearby beach, and you grant them permission to do so.
One of the problems with unaddressed encroachments is that they can become prescriptive easements. A prescriptive easement is created when the encroacher – perhaps a neighbor or trespasser – openly uses a portion of your property without your knowledge or consent, and it grants them a legal right to use your land if their encroachment is unreported over a period of time. The time frame and specific requirements to turn an encroachment into an easement depend on the laws in your state.
If an encroachment goes unaddressed for long enough, it can also create an unrecorded encumbrance on your land. This means that your neighbor now holds a right to some aspect of your property.
Options When Dealing With Property Encroachments
If you believe one of your neighbors is infringing on your land, it’s best to politely handle the situation before letting too much time pass. Most encroachments can be resolved amicably and in a way that’s satisfactory for both parties.
Below are three steps you can pursue when dealing with an encroachment issue.
Talk With Your Neighbor
It’s wise to start by talking with your neighbor and explaining your concerns. This is always ideal, especially if the encroachment is minor and can be easily addressed, like in the instance of an overhanging tree branch.
Try to go into the conversation with the assumption that the encroachment is unintentional. This approach will likely help you come across friendlier when confronting your neighbor.
Sell Your Land, Or An Easement On Your Land, To Your Neighbor
Another option for homeowners is to sell an easement, or the affected portion of the land, directly to their neighbor. This way, once the property clerk records the transaction, all uncertainty disappears and any future problems are averted.
Take Your Neighbor To Court
If the previous two options don’t work and your neighbor isn’t willing to resolve the issue, you can take them to court. This approach is always the least desirable path because it’s slow, expensive and may create lingering tension between you and your neighbor.
And unfortunately, taking your neighbor to court won’t necessarily resolve the issue in a favorable way since the court could determine that your neighbor’s trespass on your land is legitimate.
The court could decide that it constitutes a prescriptive easement, which then needs to be recorded. If the court rules that your neighbor is unlawfully trespassing on your land, the court will order your neighbor to remove the offending feature.
The Bottom Line: Encroachment Is A Problem To Be Resolved, Not Ignored
Nobody likes conflict with their neighbors, but it’s always a possibility. Intentional and unintentional encroachments happen, and it’s important to deal with the issue as soon as you notice it.
Avoiding the issue could cause the encroachment to turn into a prescriptive easement, and there’s not much you can do at that point. To learn more valuable tips about homeownership, be sure to check out the Rocket Mortgage® Learning Center.
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