Many purchasers of residential real estate do not engage a surveyor to survey the property before purchasing it. This can be a mistake in compact older residential areas where side yards are small or with any property that is bounded by a neighbor’s fence. Surveys can identify encroachments on the property that are a threat to your ownership and use of it.
An encroachment exists when a structure owned by a contiguous property owner crosses over the boundary line and is occupying part of your land. Common encroaching structures include fences, driveways, sheds and detached garages. Encroachments can be the result of an error in surveying or of mistakes made during construction. Some encroachments can be an intentional attempt by a property owner to acquire the property he is encroaching upon. Once discovered, encroachments should be addressed.
Some encroachments may have already been resolved, leaving you with no other option but to tolerate it. It’s not uncommon for neighbors to resolve an encroachment through the grant of an easement. An easement is a legal right to use the property of another person for a specific purpose. Easements can be bought and sold. For example, neighbors may reach an easement agreement allowing a partial encroachment to fit a driveway. Unless you can get your neighbor to agree to give up the easement, you have little choice but to accept the situation.
If you discover an encroachment that has not been resolved, you need to act fast to protect your property rights because of adverse possession. Adverse possession is a means for someone to obtain title to property owned by another simply by openly, adversely and continuously possessing it for a long enough period. For example, if a neighbor’s fence crosses over the property line, it’s possible the neighbor will gain title to your property on his side of the fence if the fence stays up long enough — often 15 to 20 years.
You can resolve encroachments in a number of ways. The easiest solution is simply to ask a cooperative neighbor to remove an encroaching structure that’s not difficult to remove, such as a shed or fence line. If the structure cannot be removed without great expense — like a garage — you can try to sell the property upon which the structure is encroaching to the encroaching property owner to compensate yourself for the loss of value. You can also try to sell an easement over the property. If your neighbor is not cooperative, you might have to file a quiet title action in which the court will determine if the encroachment is violating your property rights. If the court determines that the encroachment is violating your property rights, the court may order the removal of the encroachment.