What Encroachment Is and How to Settle It

Encroachment in real estate is when a homeowner builds on or uses a portion of a neighbors property without permission.  This includes fences, walls, and sheds, trees and gardens, or other landscaping that grows over or is built across the property lines.  An encroachment doesn’t always have to be something you can see either.  One of the most unique (and famous) cases of encroachment is Lingle v. Chevron U.S.A. Inc. where a Chevron-owned underground gasoline storage tank leaked gasoline onto Lingle’s property causing environmental damage and the loss of use of the property. The court found Chevron guilty of encroachment and liable for the damages incurred.

Once an encroachment is discovered, it’s best to deal with it right away to avoid title issues, reduce liability, etc… down the road.  A longstanding encroachment can be considered an encumbrance (a claim that a non-owner has on a property of another) which can cloud a property’s title.  For example, in New York, if your neighbor encroaches on your property knowingly and without permission for ten or more years, your neighbor can claim ownership of that encroached property (NY RP ACT & PRO § 501).

There are several ways to handle encroachments, and if you bought title insurance when you bought your home, the title company that provides the policy will usually help sort this out for you.  But before they do, you have to take the first step which is having a professional land survey done.

A land survey determines where your property ends and your neighbor’s property begins based on the legal description in your deed.  The survey will tell you if your property’s boundaries are where you believe they are, and how much land is being encroached on.  Once it is completed you’ll want to talk to the party you’re encroaching on or who is encroaching on your land. 

Many encroachments are unintentional (regardless of who is doing the encroaching), so keeping things friendly is the best approach.  A simple misunderstanding can quickly be cleared up with a visit, phone call, letter, or email.  You can avoid stress and expensive legal fees by keeping calm and knowing there will likely be an easy solution.  When you talk to the other party, share the information you have like surveys, title work, and appraisals to show that you are being open and honest and want to work towards a mutually beneficial resolution. 

The easiest way to do this is to strike a deal with your neighbor to sell that portion of the land to them (or buy the land from them if you are encroaching on it), or see if you can use an easement.

Pro-tip:  Any agreements should be in writing and record the easement in the certificate of title.  This may help prevent the encroachment from becoming an encumbrance.

If you cannot come to a solution, you may wind up in court.  Going to court should always be a last resort.  It is expensive and one of you will come out the looser making your relationship with your neighbor sour for a long time.  But if you cannot come to an agreement, there may be no other choice but to file a lawsuit and ask the court to decide who legally owns the land.

By having a property survey done and a friendly conversation, you can normally find a cost-effective and happy resolution when it comes to encroachments.  And if there is none, have all your ducks in a row and paperwork ready to go.  But don’t worry, most people are reasonable and you can settle easily.  The goal of settling an encroachment is to avoid legal problems and costly lawsuits in court.