Encroachment: What It Means in Real Estate

Encroachment in real estate refers to anything "encroaching" on your property line. Common examples include a tree, a garden, a shed or a driveway when access isn't allowed. It's something you'll want to consider before purchasing a property to avoid problems down the line. 

Many homeowners find that relationships with neighbors can be stressful, usually stemming from issues with encroachment. Your neighbors may not be aware or may not care that some of their property is encroaching on yours. Does it matter? Read on to understand encroachment in real estate and how to deal with any issues that may arise.

What Is an Encroachment in Real Estate?

Encroachment in real estate is any structure, object or plant that crosses into your property. This often occurs along a disputed property line. Someone may choose to violate a neighbor's property boundaries intentionally or may not be aware of where the boundaries are. Encroachment occurs when a property owner builds or extends structures beyond their property line into a neighbor's property.

What Are the Types of Encroachments?

Different types of encroachments depend on the level or nature of the violation of the property lines, including minor, major and structural encroachment. 

1. Minor Encroachments

Minor encroachments are any small property line violations. Overgrown branches, a garden that has gotten a bit out of control or a tree that grew over the property line are examples of minor encroachments. A fence one inch over the property line is another minor encroachment. 

Perhaps you have a beautiful flowering tree that extends over a fence into your neighbor's yard. That would be a minor encroachment. However, if the tree drops flowers into the neighbor's yard and it's unwelcome, the neighbor may ask you to cut it back or remove it. Most minor encroachments can be resolved with a friendly conversation.  

2. Major Encroachments

Major encroachments are more significant, unsightly, unsafe, or disturbing. These can include everything from a tree leaning into a neighbor's yard and at risk of falling on their house to a fence over the property line. While most major encroachments include structural encroachments, it can also include anything dangerous or unsightly that extends over the property line or disturbs the neighbor's quality of life. Building a garden or planting an orchard on your neighbor's land would be a major encroachment. 

3. Structural Encroachments

Structural encroachments are any physical structures built, knowingly or unknowingly, on a neighbor's property. This can include everything from a fence a few inches over the property line to a garden shed, pool house or home improvement extension. Structural encroachments often occur when making new additions without a formal survey, but you may also buy a property with structural encroachments you're unaware of. That's why getting a property survey before a purchase can be a smart move. 

What Is the Difference Between Encroachment and Easement? 

An easement gives your neighbor the right to access their property through a piece of your property. Or, if you hold the easement, it gives you the right to access your property through your neighbor's property. 

Encroachment and an easement are both encumbrances in real estate, which may potentially reduce the value of a property. While the names sound similar, they are significantly different. The most common types of easements are for a driveway or access to a beach, lake or community park. 

For example, your neighbor may have an easement to cross your backyard to get to a nearby beach. An easement means you permit them to cross your property. In some developments, you'll need an easement from a neighbor for driveway access.  

You can create a new easement anytime to give your neighbors the right to access, or you may purchase a property with an existing easement. In contrast, encroachment is a type of trespassing done without your knowledge or consent.

How to Identify an Encroachment on Your Property

Identifying encroachments on your property starts with getting a formal property survey to understand property boundaries. In addition, you may check property boundaries and inspect the structures or improvements in question. In many cases, an encroachment may be minor. 

Addressing encroachment on your property is important because unaddressed encroachments can become prescriptive easements. A prescriptive easement occurs when someone, such as a neighbor or trespasser, openly uses a portion of your property without your consent. 

A prescriptive easement grants the encroacher the legal right to use your land if their encroachment remains unreported over time. How long it takes to turn an encroachment into an easement varies by state laws.

How to Deal with Property Encroachments

If you notice encroachment on your property, there are steps to take. The first and simplest is simply to talk to your neighbor. If that doesn't work, you have other options. 

1. Communicate with the Neighbor

The first step in an encroachment case, especially a minor encroachment, is to speak with your neighbor and see whether you can resolve it amicably. This is the easiest way to resolve the problem. Go into the conversation assuming that the encroachment was unintentional and that you'll be able to come up with a solution together. 

2. Sell the Land to the Neighbor

If there is a major encroachment or a physical structure, whether it's a fence one inch over the property line or a home extension that more significantly encroaches, selling the land to the neighbor or encroacher can be an option. 

If you work with a real estate agent or real estate attorney to determine the property's fair market value, you can both benefit. Or, perhaps clearing the encroachment is a sufficient benefit, and you're happy to settle on a price more favorable for the encroacher. 

3. File a Lawsuit 

Filing a lawsuit can be the last resort when the first two solutions mentioned above won’t work.  If your neighbor won't work with you to resolve the issue, you could take them to court. This is an undesirable solution because it's expensive, slow, creates tension and may not resolve the issue in your favor. 

How to Prevent Encroachment Issues When Purchasing a Property

When purchasing a property, preventing encroachment requires research and a property survey ahead of time. The surveyor should be able to locate the exact property boundaries, easements and encroachments. You should also work with a title company that can conduct a thorough title search to ensure no liens or encumbrances on the property. 

Final Tips on Encroachment in Real Estate

Encroachment is something that can, in rare cases, lead to bitter, long legal disputes between neighbors. In most cases, any encroachment can be resolved amicably by talking through it and working out a favorable solution for both you and your neighbors. If you perform a title search and get a survey before purchasing a property, you'll know whether there are any encroachments and can go in prepared. Ready to buy your next property? Find a complete real estate investing guide or how to buy a rental property here. 

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