large old oak tree hanging over neighbor's fence

Encroachment: What It Means In Real Estate

Jamie Johnson4-minute read

September 17, 2020

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One of the things many people don’t realize about homeownership is that coming up with the down payment and closing on your house is only the beginning. Once you move in and begin making the property your own, many other challenges can arise.

For instance, many people are surprised to find that relationships with certain neighbors can be a source of stress and frustration. And one of the biggest areas where problems arise is encroachment.

Encroachment means one of your neighbors seems to not notice – or not care – that their trees, garden, or shed are encroaching on your property. If left unresolved, encroachment can lead to a whole host of problems, so it should be addressed sooner rather than later.

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Encroachment, Defined

At this point, you may be unclear as to what encroachment is. Encroachment 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, but often it’s not. This is especially true when there is some ambiguity about where the property lines lie.

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 examples to watch out for:

 

  • Your neighbor builds a fence, and it extends onto your property
  • A structural addition to their home extends beyond the legal property boundaries
  • An overgrown garden or hedge crosses onto your property

Encroachment Problems At The Time Of Sale

When it’s a minor issue, it’s easy to overlook encroachment since it doesn’t have a major impact on your life. But while it may not cause problems in your day-to-day life, it can cause issues when you decide to sell your home.

That’s because encroachment can make it hard to establish property lines, and it can create title problems. 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 considering buying your home. Encroachment can not only complicate your ability to sell your home, but it could lower the amount you end up receiving for your house.

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Encroachments Can Become Easements

It’s easy to confuse a real estate encroachment with an easement. Both involve a homeowner making an extension onto their neighbor’s property, 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.

However, one of the problems with unaddressed encroachments is that they can become prescriptive easements. This largely depends on the laws in your state.

But if an encroachment goes unaddressed for long enough, it creates an unrecorded encumbrance on your property. This means that your neighbor now holds a right to some aspect of your property.

Options When Dealing With Encroachments

If you believe one of your neighbors is infringing on your property, there’s no reason to get upset, but you do need to handle the situation. Most encroachments can be resolved amicably and in a way that’s satisfactory for both parties.

Here are three steps you can pursue when dealing with an encroachment issue.

Talk To Your Neighbor

The first place to start is always by talking to your neighbor and explaining your concerns. This is always ideal, especially if the encroachment is minor and can be easily addressed, like an overhanging tree branch.

When you approach your neighbor, always be friendly and calm when you explain your concerns. Try to go into the conversation with the assumption that the encroachment is unintentional.

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 property, directly to your neighbor. That way, once the property clerk records the transaction, all uncertainty disappears, and any future problems are averted.

Take Your Neighbor To Court

And finally, if the previous two options didn’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 creates hostility between you and your neighbor.

And unfortunately, taking your neighbor to court won’t necessarily resolve the issue in a favorable way. The court will determine whether your neighbor’s trespass on your property is legitimate or not.

The court could decide that it constitutes a prescriptive easement, which then needs to be recorded. If the court decides that your neighbor is unlawfully trespassing on your property, they will be ordered to remove the offending feature.

Summary: Encroachment Is A Problem To Be Resolved, Not Ignored

Nobody likes to imagine conflict arising between them and their neighbors, but it could happen at some point. 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 our Learning Center.

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Jamie Johnson

Jamie Johnson is a Kansas City-based freelance writer who writes about a variety of personal finance topics, including loans, building credit, and paying down debt. She currently writes for clients like the U.S. Chamber of Commerce, Business Insider, and Bankrate.