Encroachment

What Is Encroachment?

The term encroachment refers to 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 intentionally or otherwise. Encroachment is often 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 boundaries.

Understanding Encroachment

Property and land surveys are an important part of homeownership. Not only do they help determine property value, but they also help establish property lines and boundaries. Professional surveyors are responsible for completing these surveys. Many homeowners get their first survey when they apply for a mortgage because lenders require them to ensure the loan matches the property's value. Property owners can get surveys completed at any time — especially when someone disputes or encroaches on property lines.

Most mortgage lenders require a land survey as part of the approval process to ensure the loan matches the property value.

Encroachment happens when someone traverses boundaries outlined in a survey, violating the property rights of another property owner. Encroaching on someone else's property is akin to trespassing — that is, entering another person's grounds without their express permission. A homeowner encroaches on their neighbor's property if they build a new structure, add to an existing structure, or extend their fence beyond the lawful boundaries that separate both properties.

Some property owners encroach on their neighbors by knowingly going beyond their property lines. Someone who builds a fence or makes an addition to their home despite knowing of the property lines does so intentionally. But in most cases, encroachment is unintentional — when a property owner is either unaware of or has wrong information about legal boundaries. For instance, a property owner may unintentionally encroach on a neighbor's property by allowing a hedge or a tree limb to grow beyond property limits.

Structural encroachment occurs when a property owner builds or extends a structure onto the public domain such as sidewalks or roads. In most cases, sidewalks and residential streets are generally public property owned by the municipal government. This means that a property owner who builds a driveway or erects landscape components — trees, bushes, and flowers — that encroach on public property, may have the structures removed by the government. Furthermore, the property owner may not be compensated for any damages that occur from tearing down his or her structures.

Special Considerations

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.

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 or have a land survey done to make sure the work falls within their own property boundaries.

Encroachment vs. Easement

People often confuse encroachment is sometimes confused with easement. Both involve a property owner making extensions over their neighbor’s property. While encroachments are the unauthorized use of the neighbor’s property, easements are agreed upon by both parties. In many cases, the party responsible for the easement compensates the other neighbor. An example of an easement can be seen when a property owner explicitly gives a neighbor permission to access a nearby beach through his property.