What is an encroachment? The answer is something you’ll certainly want to know when you’re involved with one.
When you are buying or selling a home, the issue of encroachments could be something that becomes a problem. A land survey could uncover an encroachment on the home you want to buy that could make you rethink your purchase.
In fact, you may want to seek legal advice from a qualified real estate attorney when this happens.
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 will be essential to understand how encroachments can impact the sale.
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 encroachment issue.
Here are twelve things you’ll learn about encroachments:
- The definition of an encroachment.
- The types of encroachments.
- Buying a house with an encroachment.
- Understanding how encroachments occur.
- Common examples of encroachment in real estate.
- How to 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?
If a neighbor builds something that crosses the property line onto your lot, this is an encroachment. It doesn’t matter if the structure is built on your land or just overhangs. It is still something that could restrict the use of your property.
So by definition, an encroachment is 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.
Home Buying and Encroachments
If you are considering buying a home that has an encroachment, it might not really concern you. However, even if the encroaching structure doesn’t seem to be creating much of an issue for the home, it could create legal problems.
If something were to happen with the use of the neighbor’s property because it is encroaching on your land, you might be liable. This could mean you need to claim on your home insurance, leading to increasing premiums in the future.
It could also mean that your home is more difficult to sell later on. 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.
It won’t be surprising if a buyer is put off by the boundary encroachment and the possible increase in homeowners insurance premiums that it could mean.
The effect of encroachment on house prices could make buyers offer less for the home. You could even find your buyer walking away from the purchase due to these potential problems.
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 neighbors land, you need to know how serious they are. There can be minor encroachments and major encroachments.
Let’s take a more detailed look at each of these potential encroachments.
There are many occasions where the encroachment isn’t going to cause any problems. It could be a temporary and very minor issue, like a plant or shrub growing across the boundary line.
This can also include badly positioned fences that don’t really create a problem but are technically encroaching 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 rather 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 known as 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.
More Serious Encroachments
There are certain problems that you need to take more seriously. If part of a neighbor’s home or garage has been constructed over the property line, this is something that should worry you. While it might only be an inch or two across the boundary, it is potentially a larger issue than plants or fencing.
Large tree branches that overhang are a similar type of problem. Things like this have the potential to do damage to your property or cause injury to someone should the branch give way.
Any issues like this need to be carefully considered if you are looking to purchase the home. A major encroachment should not be ignored. You would just be asking for trouble.
Obviously, a tree limb hanging over a property is easily fixable, but it would be good to correct the issue.
If a homeowner has purposely built a structure on someone else’s land, this will be a bigger problem. While situations like this normally arise between neighbors, it can involve a municipality as well.
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, and these things need to be addressed if you are looking to buy the 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 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.
- Set back requirements or other zoning ordinances are violated.
How Do Encroachments Happen?
Quite often, encroachments happen when homeowners make do-it-yourself improvements without pulling building permits and hiring professionals. For example, in most places, you would need to pull a permit to install a fence.
Professionals often take the time to ensure they are not installing an improvement in a location that it doesn’t belong.
Getting a professional surveyor to look over the legal description of the property 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 will intentionally create an encroachment hoping it won’t ever be discovered. Obviously, this isn’t very smart!
How to Deal With Encroachments
If something is encroaching on your property, or something like this has been found on a home you want to buy, what should you do? There are a few options to resolve the situation and remove the problem.
If the issue is only minor, simply talking to your neighbor will often be enough to resolve the situation. Though, if it is something more serious, the neighbor might be less willing to cover the cost of dealing with it.
Sell The Land or Make a Land Swap
Another option, particularly 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 will need to consult a real estate attorney and your mortgage lender about moving the property lines.
It would be best to be certain that you can do this following an accurate survey, and the lender’s consent is also important.
Since your home is collateral for your mortgage, they have to agree to this plan.
If you cannot reach an agreement with your neighbor or if things become acrimonious, legal action might be the only option. 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.
When a property encroachment is discovered, it is highly advisable to discuss your legal rights with a local real estate attorney.
What is an Encroachment Agreement?
An encroachment agreement is one of the easiest ways of dealing with boundary issues of a neighboring property. The agreement will describe the encroachment and name who’s the owner of the encroaching improvement.
The encroaching party will agree that even though they are using the neighbors 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 maintenance and holding the neighbor harmless for any damage the encroachment may cause.
An encroachment agreement will also usually state that if the property improvement needs replacement, the new structure won’t be permitted to encroach.
You are essentially getting your neighbor’s permission to infringe on their private property rights. It is referred to as the continuance of the encroachment.
What is Adverse Possession in Real Estate?
Have you heard the term adverse possession and wondered what it meant? In property law, adverse possession is when a trespasser could gain ownership of a property.
It happens when a property is used repeatedly, usually for years, without an owner objecting. Sometimes possessory interest in a neighbors 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.
Whenever buying a home with an encroachment issue, you’ll want to make sure 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 suit to a quiet title 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 there are important differences that 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 some land that was later developed. This could mean that access to the property is no longer possible without it being allowed by 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 need to use the driveway to get to their home. Most properties will have easements that grant utility companies access to be able to fix any issues.
Easements grant access to a portion of the land as described in the property description. Landowners should always be keenly aware of any property easements.
What is an Encumbrance in Real Estate?
An encumbrance is a liability or claim that is attached to a property. An encumbrance will impact the value of the property typically by obstructing its usage.
It is essential to do your due diligence to make sure you 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 Encroachment Permits?
While we are talking about the subject of encroachments, the topic of encroachment permits should be mentioned. At times you may need to encroach 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 by dropping the moving container on their property, you will need an encroachment permit.
An assurance of safety and accessibility is always required on public property such as streets and sidewalks.
Nobody wants to be heading to the closing table only to find out there is a serious encroachment issue. Depending on the type of encumbrance, it could harm the property value.
Be sure to consult with a real estate agent and attorney before moving forward with any encroachment or encumbrance problem.
About the author: The above Real Estate information on what is an encroachment was provided by Bill Gassett, a Nationally recognized leader in his field. Bill can be reached via email at firstname.lastname@example.org or by phone at 508-625-0191. Bill has helped people move in and out of many Metrowest towns for the last 34+ Years.
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