What are Encroachments in Real Estate?

Aug 22, 2022
5 min

Encroachments are one of the biggest encumbrances in real estate that affect homeowners. Just like other restrictions that may be on real property, encroachments affect an owner’s ability to make use of their property in whatever way they feel is best. 

As a broadly used term and regular occurrence in real estate, it is important for real estate enthusiasts and homeowners to fully understand what encroachments are about.

With this article, we aim to provide you with adequate knowledge of what encroachments are, how they work, and how to deal with encroachers.

What are Encroachments?

Encroachments are situations in real estate when part of the property extends beyond its borders and onto another property. 

It can also be referred to as the violation of contractual property rights by illegally building or extending structures onto neighboring properties without approval.

Encroachments are a significant cause of conflict between neighbors and are perceived to hinder the buying or selling of a property. 

Whether it occurs with or without the knowledge of the encroacher, the encroaching property owner remains responsible for infringing on the rights of their neighbor.

How Do Encroachments Work?

Let's say a homeowner decides to erect a fence around his property, and in the process, the structure extends onto another property. 

This will mean that the homeowner is guilty of encroachment and has infringed on the property rights of his neighbor. Encroachments often occur when homeowners make improvements on their property without requesting building permits and conducting surveys.

Most times, it is possible that an encroachment may not be noticed until a proper survey of the property is conducted.

Therefore, it is important to get a professional to examine the legal descriptions when buying a property. Homeowners can also call for surveys to settle disputes between neighbors.

An encroachment may be as simple as tree branches growing beyond a property’s boundary or as severe as a structure intruding into another property. 

However, it is usually left to the owner of the encroached property to decide on what actions to take. A property owner may decide to overlook the encroachment if it doesn't cause any inconvenience.

How to Deal with Encroachers?

If you discover that your property is being infringed upon, your next line of action should be to contact the encroacher and take steps toward resolving the problem. Here are the best practices to use when dealing with encroachers.

Communicate with the Encroacher

In many cases, a friendly conversation could be all that is needed to resolve an encroachment. 

This is usually effective when the encroaching structure can easily be removed, and the encroacher has no problem doing so. 

Encroachments such as intruding tree branches or an overlapping garden can be handled this way.

Sell the Land to the Encroacher

Some encroaching structures may be too difficult to take down or may have cost a lot of money to erect. 

Therefore, offering to sell the land that is being encroached upon to the encroacher isn't a bad option. The encroacher doesn't have to bother about demolitions, and as the property owner, you get paid for the portion of your property. 

Since your property serves as collateral for any existing mortgage you might have, it is necessary to consult your mortgage lender when doing this. 

You might also want to hire a real estate attorney to ensure that accurate land survey records are kept.

Take Legal Actions 

Legal actions should only be taken as a last resort when dealing with encroachers. If you and the person responsible for the encroachment are unable to come to a peaceful and fair agreement, you might as well just take the matter to court with the help of a real estate attorney.

What is the Difference Between Encroachments and Easements?

Encroachments and easements are two similar real estate terms in the sense that they both involve the extension of structures onto a neighbor's property. 

Despite this huge similarity, they are inarguably different. When there is an encroachment, the structures exist on the property illegally and without permission.

There is often compensation paid to the neighbor by the property owner requesting the easement for the intrusion.

Unlike an easement, encroachment problems that go on for years can give ownership rights to an encroacher through adverse possession. 

Also known as “squatter’s rights”, this is the occupation of another person's property to own it.

What is the Difference Between Nonpossessory Interest and Possessory Interest?

Nonpossessory interests and possessory interests are rights, claims, or privileges that an individual has regarding land or real property. 

Although these two real estate concepts share some similarities, they are as different as the two sides of a coin.

A nonpossessory interest is the right possessed by an individual to use another person's real property or land. It is usually an agreement between two parties expressing one person’s intention to use the other’s property. 

This agreement can be made through a contract, as in a lease agreement, or through a verbal agreement. An example of a nonpossessory interest is an easement. 

On the other hand, a possessory interest refers to an individual's right to occupy real property. 

Although a person with a possessory interest does not own the property, they have some right to control it. This interest is expressed in a contract agreement between the two parties.

Final Thoughts on Encroachments

Now that you have fully understood the concept of encroachments, you can see that they shouldn't be taken with levity. 

It is possible that even the slightest infringement on real property can cause many problems to the property owner. These problems include an inability to sell and, in severe cases, the loss of a part of the property to an encroacher.

Therefore, when encroachment is noticed, the property owner should begin dealing with the encroacher immediately. 

Also, seeking the expertise of a real estate attorney is always a good idea when dealing with cases like this.

TL;DR: Encroachments occur when one property extends past the border onto someone else's property. An encroachment also runs the risk of legal taking someone else's land if not disputed.

Aug 22, 2022
5 min