When people think of putting up a fence, building a shed, or erecting a large structure on their property, they often don’t consider the fact that they could be placing an encroachment on their neighbor’s real estate.
Land boundaries are simply, “What you see is what you get,” right?
There’s no reason to worry that they could cause issues down the road or cause you to end up in court.
WRONG.
If you’re not careful, you may be setting yourself up for a problem if your structure ends up on your neighbor’s property.
We’re talking about encroachment in real estate.
In this blog, we’ll discuss what that means and how that can impact your property.
Here are the top things you need to know.
1. What is encroachment in real estate?
An encroachment refers to a situation where one property owner builds or extends something on their neighbor’s property.
Often, encroachment is a problem along disputed property lines, where a person intentionally chooses to violate his neighbors’ boundaries.
It can also occur when a property owner is not aware of the property boundaries.
2. What are the types of encroachments?
There are two types of encroachments:
Trespass:
This type of encroachment happens when there is intrusion onto physical land.
For example, if your neighbor’s fence or shed is placed partially on your property, then it would be a trespass encroachment.
An encroachment where a physical structure is built on a neighbor’s property is also called a structural encroachment.
Nuisance:
This type of encroachment applies to airspace.
Imagine a tree where branches hang over into another’s yard.
This is a nuisance encroachment.
3. Are encroachments legal?
While encroachments may sound harmless (especially nuisance encroachments), you’re violating someone else’s property rights by encroaching on their real estate.
Thus, they are illegal.
However, you can claim the right to the encroachment through adverse possession.
Although keep in mind, the following criteria must be in place for between 7 to 20 years (depending on the jurisdiction) for adverse possession to take place.
Continuous:
The encroacher must maintain continuous use of the property.
The encroacher must be doing it against the wishes of the property owner.
In other words, they must not have gotten permission.
Open:
The encroachment must be obvious (you can see it).
Actual:
The encroachment must be shown by a land survey that depicts the actual boundaries.
The property owner on whose property the encroachment is located cannot simply claim that it is their land.
They must demonstrate it.
Exclusive:
The encroacher must act as if they own the area they are encroaching up.
4. Can an encroachment be innocent?
In some cases, encroachments are intentional.
The individual wants to see what they can get away with and deliberately encroach on someone’s land.
The outcome?
They end up getting sued.
However, there are absolutely cases where encroachments are entirely innocent.
The encroacher will simply have misinformation about the land boundaries and getting a land survey will help resolve the situation for everyone involved.
5. Why is it important to understand encroachment as a landowner?
Property and land surveys, performed by professional surveyors, are a fairly typical yet essential part of home and land ownership.
These help you determine the property value and establish property lines and boundaries.
Mortgage lenders require you to get a survey to ensure that the loan matches the property’s value.
Thus, most property owners will get their first survey prior to closing.
If during this time an encroachment is identified, then you may have to go through the process of resolving any disputes or encroachments.
6. What is the difference between an encroachment and easement?
Encroachments and easements are sometimes compared because they both involve people taking over a part of someone else’s real estate.
Here’s the key difference:
Encroachment = unauthorized
Easement = authorized
With an easement, you don’t grant ownership of your land to another party.
You merely grant access to use a right of that section of land.
For example, if you wanted to allow your neighbor to cross a section of your land to get out to the road, then you could do that by granting an easement.
Another example is granting an easement to a utility company.
Sometimes they require one to lay cable, gas, or utility lines at the edge of someone’s property.
Either way, these easements are granted for a specific purpose and with the knowledge that it is occurring.
On the other hand, encroachments occur without consent, and can violate the landowner’s property rights.
For more information on easements, you can check out our article on Road Easements.
7. What does an encroachment look like?
Thus far, we’ve spoken about encroachments in relatively vague terms, but you may be wondering, “What does an encroachment actually look like? Could I be encroaching on my neighbor’s land without even realizing it?”
To give you an idea of what an encroachment looks like, we’ve created a list of common encroachment issues that you may see or encounter.
Someone building directly on your property
Someone building a structure that extends onto your property
Someone routinely trespassing on your property
Someone abusing a valid easement
Above, we noted that an easement is an authorized and legal means of allowing another person access to your land.
This is under the assumption that they are progressing to another structure.
However, you may feel that someone is taking advantage of and abusing a valid easement that is in place.
For example, they may routinely drive through another section of your property instead of the established easement.
This can make a homeowner’s life difficult and could be considered an encroachment.
8. What special considerations come into place with encroachment?
The land survey is intended to lay out the physical boundaries of the property.
However, wrong information can be contained in the survey as well, and this could lead to a physical intrusion on a neighbor’s land.
Thus, it is especially important for property owners to carry out their own due diligence and not just inherit information from previous property owners.
Before you erect any structures that fall close to boundary lines, you should make sure that you have an accurate idea of where the boundary lies.
Additionally, if you wish to make changes near your property lines, make sure you discuss these with your neighbors or have an additional land survey done to ensure that all your work is done legally.
9. What happens with encroachment problems at the time of sale?
Encroachments don’t always impact your life in a big way.
If your neighbor’s fence or bush isn’t in exactly the right spot, or they tend to use a section of your yard in a way that doesn’t bother you, what does it matter?
You’re friendly with them, and they can practically assume permission.
The simple truth is that it doesn’t bother you, and it doesn’t impact you.
However, encroachments can make it hard to establish property lines, and they can create new title problems.
Thus, potential buyers will likely take issue with them.
Additionally, many lenders require property surveys before you can sell your real estate, and any encroachments will be noted during this time.
So, keep in mind that even if something doesn’t bother you, it will likely be a pain when it comes to selling the property.
Don’t let an encroachment complicate your ability to sell your property.
In the end, it can even lower the amount you’re offered!
10. How do I know if my land is being encroached upon?
Properties have legal descriptions that are recognized by a court of law.
This legal description goes beyond just your street address and gives the exact boundaries of a lot.
To find this information, look at your property’s deed or contact a land surveyor.
If you think someone is encroaching on your land, you can also order a title search.
This is helpful because it shows whether any easements or deeds have been granted prior to the new owner’s ownership.
Often, this is most helpful before you buy a property because then the potential buyer can decide whether they still want to buy.
11. What happens if I’m encroaching on my neighbor’s land?
“Help! I didn’t mean to, but I think I’m encroaching on my neighbor’s land. What do I do?”
In all honesty, the answer depends on who your neighbor is.
The easiest outcome would be absolutely nothing.
If the encroachment is minor and your neighbor doesn’t mind that it’s occurring, then you may not need to do anything about it at all.
However, this might not be your neighbor’s take, and even if it is initially, then it may not be forever.
If your neighbor ever wants to sell their property, then you’ll need to disclose the encroachment situation to the potential buyers.
Odds are that they’ll want to have full use of their land and will challenge your encroachment to get you to rectify the situation.
The first step on their end should be proving that the encroachment itself exists in the first place.
Even if you think the encroachment exists, no one really knows until there’s been a land survey and it demonstrates an encroachment.
After all, even if they went to court, they would need to have a land survey done in order to have proof.
If they do prove that you’re encroaching on their land, here’s what will likely happen.
You talk to your neighbor:
The neighbor may want to know whether you knew about the encroachment all of this time and whether you’re willing to remove it.
Keep in mind that it’s often better to settle these types of issues outside of court.
The best scenario is working together.
If it’s a smaller problem that can be fixed, you probably don’t want to pay for the legal counsel that will be required to address the issue in court.
A few common solutions include:
- Removing the encroaching structure
- Executing an easement giving you the right to continue using a portion of your neighbor’s property for a specific use
- Executing a lot line adjustment to bring the encroachment onto your property.
You may try to buy the land:
Depending on what the encroachment is, it may not be simple to remove.
So, you may offer to buy the land.
If the neighbor agrees, then this is a simple solution that can also make both parties happy.
We recommend contacting a real estate attorney to help handle this transaction and make sure you have everything in order.
You might receive a letter:
If the two of you can’t come to an agreement out of court then the owner of the neighboring property may decide to sue.
If at all possible, try avoiding court.
Because litigation is costly and time-consuming, it isn’t in everyone’s best interest.
Plus, you have to live next to this person for the foreseeable future.
Try offering a settlement or talking with a mediator before going to court.
You might need to defend yourself:
The worst-case scenario is going to court.
Most likely, this will be a quiet title suit, which is designed to determine ownership over the real estate in question.
If your neighbor has evidence that you are encroaching on their land, then you can expect the court to rule against you.
If you’re not encroaching, you should be able to get proof of this by having a survey done that shows the property boundaries.
12. Will my neighbor become the owner of the part of the building that encroaches on their real estate?
One interesting question that is often raised is whether the neighbor whose land is encroached upon will come to own the structure that is on their land.
The answer is no.
Instead, the encroachment will be viewed as an act of trespass and that needs to be reconciled.
13. Should I hire a lawyer to help resolve my real estate encroachment issues?
Because encroachment issues involving property can become complicated, it is generally beneficial to have a real estate lawyer help you if you think you’re going to pursue legal action or if you’ve committed encroachment on your neighbor’s land.
Property law is complicated – in part because it varies according to the state.
Having an experienced attorney who can research on your behalf and with whom you can discuss your rights is essential.
Final thoughts
Sometimes conflict is unavoidable.
If you’ve encroached on your neighbor’s land or they’ve encroached on yours, it’s up to you to get it sorted out.
Deal with encroachments sooner rather than later so it doesn’t impact your home or land when you try to sell.
Additional Resources
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.
Prior to starting Gokce Capital, Erika received a Bachelor of Architecture from the University of Southern California and a graduate degree in Urban Policy from Columbia University. She worked as both an architectural designer and engineer in New York before joining the New York City Department of Housing Preservation and Development.
Erika currently lives in the New York Metropolitan area with her spouse, daughter and cat. She is originally from Chicago and still considers herself a midwesterner at heart.
Erika also loves to read, write and travel (fun fact, she has visited all 50 states and more than 30 countries!). Her new book, Land Investing Mistakes: 11 True Stories You Need To Know Before Buying Land, is now available on Amazon.
I just emailed You about landlocked squatters rights or aDverse possession. Now i can add encroachment. All 3 pertain to a piece of property on prop that we owned for over 50 years. So what is the easiest way to legally have it be Added to my property in NJ?
Hello Joann, I just responded to your comment on our landlocked article!
I have a fenced in backyard but my property extends well beyond my fence, from 4 ft at one point to over 50 ft in another. Between one of my neighbors, the property as per the survey I got at time of purchase, is 9 ft beyond the fence ( the fence was there many years prior). However, my neighbor has built his kitchen garden about 75% of which is on my property! I informed him one day last year and gave him a copy of the survey I had from the time I bought my house. He feigned ignorance and has continued to maintain his kitchen garden on my property! I find it an affront that anyone should so blatantly take advantage just because I am not ‘using my property’! Furthermore, he has planted a breed of grass from the Southern climates that (a) remain yellow for much of the year, and (b) are starting to invade my front yard!
I don’t know what to do beyond digging up the property diviing line on my side, and making it into a flower bed. Neighbor refuses to resod his grass!
Any thoughts or suggestions to [email protected] appreciated.
Hello Tom,
I’m sorry to hear about your situation. I would recommend reaching out to a local real estate attorney. Many of them may be willing to offer a free 30-minute consultation.
I protested the Chaves County Assessor’s valuation of my property in 2017. He used a GIS survey for the property deed description, which revealed the encroachment of a fence previously believed to be the property boundry since 1990. The valuation of land increased for 0.1935 acres. The neighbor was notified of the encroachment.
On the advise of an attorney, I purchased a land survey in 2018 to combine the 2 property deeds descriptions into a single deed description. The survey confirmed the encroachment of the fence onto my property.
The neighbor was offered a resolution, change the property boundry to a surveyed description of the fence for $1500.00. He refused. He is trying to sell his property, and demands I sell the encroachment to his buyers. I refused. He refuses to obtain a survey description of the fence. Thru an attorney he is claiming adverse possession, even though he knows I have paid property tax on the encroachment since 2017. Can this encroachment be sold if there is no survey description of the fence?
Hello Sue, unfortunately, this sounds like a fairly complicated situation. I am not a lawyer and I do not know the laws that apply in your state/county, so I would recommend speaking with your lawyer again to see what advice they can give you regarding your neighbor’s suit. You may also want to look at our blog post on adverse possession: gokcecapital.com/what-is-adverse-possession-in-real-estate/
File injunction to stop adverse possession at court house and ask for a judge to review and pass judgement on real evidence. Can hire a court clerk to produce filings.
Reading your responses to the sometimes lengthy posts are heartfelt. Why on earth will anyone intentionally encroach on their neighbors land is insane. Unfortunately, this happened to me. After noticing my neighbor dismantled my fence that borders my back yard, I immediately served him with a cease and desist letter. The next day, he reassembled my chain link fence, and modified his project to fit on his average size yard, instead of my .52 acre lot. Unfortunately, this put a wedged on being neighborly.
I’m very sorry to hear of your situation, TM, but thank you for sharing your story. Unfortunately, neighbors aren’t always neighborly!
I have a survey from 1980 and my neighbor has a survey from 1990 and the boundaries crossed over to my land on my survey. We are not talking and both argue that the 5’ of land is each of ours. What is the best way to handle this dispute besides going to court?
Hello Joanne, you may want to start by getting an updated survey from a surveyor who you both agree is a neutral third party. Ideally, you would both agree to accept the results of the updated survey, but you may want to speak with a local real estate attorney to see what your options are.
I moved to Marion County Florida a year ago after my wife’s passing and bought a new home for my retirement. I put up a PVC type fence to protect my three little schnauzers from the Florida wildlife. My neighbor moved in next door 3 weeks later and attaches his fence to my fence without notification. We live in a deeded community, so I sought help with this matter from the restriction’s office.
The deed restrictions office mailed several letters stating that it was illegal for him to attach his fence to mine and also sent out inspectors to talk to him about it. A year has passed, and nothing has changed. The land survey clearly shows encroachment onto my property what do I do now?
Hello Michael, I’m sorry to hear about your situation. I would recommend reaching out to a local real estate attorney.
neighbor build garage/shed on my property 10’X20′. Had building permit- town never inspected
Never received and info
I’m sorry to hear about your situation, Carole.
Work well done. Thank you!
Thank you!
Hello, Erika.
Checking to see if you know about property rights for existing subdivisions with stub roads.
Question: does a land developer or City Commission have the right to stub or connect roads from the new subdivision into our existing neighborhood without majority permission of residents from our subdivision?
Our subdivision is 38 years old with custom homes currently ranging from $400,000 to $700,000 on 1+ acre lots in the county.
The proposed subdivision wants to access our stub road through adjoining property to our subdivision. The proposed plat of land is zoned also for the county at 1/8 acre or less, no statement of square footage, no green spaces, sidewalks on only 1 side of the street and they refuse to discuss the price point of these homes.
A subdivision adjacent to both the proposed subdivision and our existing neighborhood is being built with pre-fab materials and look like cookie cutter homes on 1/3 acre lots.
And this is exactly counter to the developers agreement to build homes in that new subdivision that would be comparable in price point and size to our existing
Initially, the developers signed an agreement 2 years ago to build Cul de sacs and Hammer Head turn around area to meet International Gore codes and avoid connecting to our existing neighborhood.
Now, as of this week, they informed us that they’ve received a directive from the City to use our stub roads to meet the Fire Code for the proposed subdivision.
This move is against our United disapproval, 78%
of tall residents signed a written statement that they strongly disapproved connections of
Any of our 5 stub in roads to the proposed subdivision.
We estimate a combined equity loss in the MILLIONS of dollars for our subdivision residents with the additional traffic and health and safety risks to our subdivision built 38 years ago without sidewalks.
Elderly Neighbors walk, kids ride bikes in the roads because we have no sidewalks and residents are concerned with liabilities related to accidents and accessing our private ponds. As an HOA we have no control over trespassing and potential liability from drowning or poaching fish and increased risk for crime and traffic fatalities.
The neighborhood residents owning properties in the most expensive section of our neighborhood where the proposed stub in is located will lose the most in home equity, face the highest risk to health and safety and 55% of those residents are professional people of color-African American, Latino, and Indian.
My husband explained all these things to the City Planning and Zoning Commission and the City Planning Commission during last weeks meeting with the city commission board and they still voted in favor of a developer who refused to meet their stated requirements or honor his written agreement with us 2 years ago.
By the way, the city commission does not penalize subdivisions north of town who are largely white and much wealthier than south of town.
So, any suggestions or knowledge about laws that would protect our property rights would be greatly appreciated. Thank you!
Patricia
Hello Patricia, I’m very sorry to hear about your situation. It does sound unfair and also upsetting given that the city won’t listen to you and your concerns. Unfortunately, there’s not much I can recommend if the city wasn’t willing to assist. You’ve probably already done this, but have you spoken with a lawyer? Perhaps you can try and sue the city?
Hello I have a neighbor that refuses to move the encroachment in my property. I had to hire a Lawyer and this has been going on for 2 years. The encroachment is close to 4 feet. My question is can I build a fence inside my property to block the neighbor from trespassing?
Hello Maria, I’m afraid I cannot offer legal advice. I would check with your lawyer, but I would think that, so long as the fence is on your property, you would be fine.
Hello Erika,
So I live in Suffolk County NY, I border Belmont State Park land. Since I moved into the home back in 2001, I have maintained and used all of the property up to the state fence. Over the last 22 years, I have had a fence up and now have a vinyl fence along with a pool deck that I have just found out that is on state property from 3 feet pitching out to 4 feet onto their property.
When the original fence was put up the property stakes were used as the boundary line. I have maintained this property and beautified it over the last 22 years. The state fence is onto state property about 3 to 4 feet not the standard 8 to 10 inches.
Do you have any suggestions.
Thank you, Bill Peters
Hello Bill, I would recommend speaking with a local real estate attorney.
Good article and q&a’s but none come close to this encroachment story I just heard in my small town. A homeowner is going to be sued by the town to remove a shed/barn that is on abutting town property. The homeowner said he bought the property like that. And this is confirmed on the MLS listing from 2018. So shouldn’t the town bear the cost of removal? No I am not the homeowner or previous homeowner or town!! Just heard this situation at a town select board meeting and thought it was intriguing. I lean that the homeowner should not bear the cost. They think he is utilizing the shed, but they said that is not a factor. Thoughts?
Thank you for sharing this story! Unfortunately, if the home was purchased in 2018, I don’t think the homeowner could make an adverse possession case, but it does seem a bit unfair on the part of the town.
Thanks for replying.
I probably won’t hear how the story ends. The Select Board had to vote on proceeding with litigation so that part was public. They probably won’t have any reason to comment on the outcome publicly. Too bad. It was interesting.
Thanks!
I’m sorry to hear that, Penny. I would have liked to have heard the resolution too.