What exactly is property encroachment? Encroachment happens when a certain property improvement crosses onto and over the boundary of a neighboring property.
One of the most common types of encroachment is structural encroachment – this is when a part of a building has been constructed over the property line. However, gardening beds, retaining walls, and fences over the line can be considered an encroachment as well.
Why do encroachments happen? More often than not, an encroachment is an honest mistake. It might be that the previous surveyor miscalculated and thought it was still a part of the neighboring property, or it could also be a misunderstanding between homeowners and contractors building the improvements.
There are several ways to deal with encroachments. The easiest way is to politely ask your neighbor to remove the encroachment. This is not usually a big problem if it’s only a flower bed or something else that can easily be removed.
If it’s a fence or a part of a structure, you can have an agreement drawn up by an attorney and either allow the other party to use the area, or pay rent for the part of your property that was encroached upon. Again, this should be in writing and recorded to prevent subsequent owners from having issues with the very same problem. Another option is to sell the “encroached” property to the other party so they’re free to use it.
If you would rather use your property, and your neighbor won’t remove the improvement, you can go to court and try to reach an agreement or judgement from this process. You should enlist the services of an attorney for this. More than likely the attorneys first request is going to be a survey of the encroachment by a licensed land surveyor.
This is exactly why land surveying is very important if you’re going to buy a property. When it comes to encroachment, the earlier you address the problem, the better. This is because of the Adverse Possession laws.
It is possible, with some additional requirements, that if someone openly uses a piece of property for a certain period of time and pays taxes for it, they could claim possession of the property, especially when no one complains about it.
Please note though that each state has different property encroachment laws so it’s best that you talk to a lawyer and a land surveyor in your area.