Encroachment: Definition And What It Means In Real Estate

Closing on a new home is just the start of your journey as a homeowner. While it’s an exciting time, you may encounter new challenges. One fairly common challenge is managing relationships with neighbors, and a frequent source of tension is encroachment.

Encroachment happens when a neighbor's property — like a tree, garden or shed — crosses onto another owner’s land. If not addressed, it can cause various problems. This makes it important to resolve encroachment issues early.

What Is Encroachment By Definition? 

Encroachment in real estate occurs when a property owner violates their neighbor’s rights by building or extending a feature that crosses over the property line onto their neighbor’s land.

In some cases, encroachment is intentional. However, keep in mind that encroachment is not always deliberate, particularly when property boundaries are unclear.

Structural encroachment, for instance, happens when a neighbor knowingly builds on land they don't own. This type of encroachment typically occurs between neighbors, but it can also involve a property owner and the local municipality, as streets and sidewalks often belong to the city for public use.

Examples Of Structural Encroachment Include:

• An upstairs deck or balcony that overhangs onto another owner’s property.
• A neighbor’s driveway that extends across a property line.
• Garages and sheds built on or too close to another owner’s land.

Though encroachment might seem minor, it can lead to serious issues, including potential liability, property damage and complications when it comes time to sell.

Examples Of Encroachment

How can you tell if your neighbor is encroaching on your property? Here are a few examples to keep an eye out for:

• Your neighbor builds a fence that extends onto your property.
• Your neighbor installs a walkway that partially crosses onto your property.
• A tree or large branches from your neighbor’s yard grow over the property line and into your space.
• Your neighbor's outdoor structures, like a pergola or playset, are placed over the property line, encroaching on your land.

What Problems Are Caused By Encroachment In Real Estate? 

If encroachment is only causing a minor inconvenience, you might decide it’s not worth addressing. However, even small encroachments can become a problem when it’s time to sell your home. Here are some potential negative effects of encroachment in real estate:

• Title issues: Encroachment can blur property lines, leading to complications with your title when selling. In many states, a property survey is required before a sale, and any encroachment will be documented.
• Difficulty selling: While an overgrown hedge or a tree overhanging your yard may not bother you, it could be a dealbreaker for potential buyers.
• Reduced sale price: Beyond complicating the sale, encroachment could also decrease the final selling price of your home.
• Legal disputes: If the encroachment leads to disagreements between you and your neighbor, it could result in costly legal battles, which may deter potential buyers and delay the sale of your home.
• Financing issues: Lenders may be hesitant to approve a mortgage for a property with unresolved encroachment issues, making it harder for buyers to secure financing, and potentially causing the deal to fall through.

What Are Encroachments Vs. Easements?

An easement is a legal term for a type of property right that allows another person, business or entity access to a specific part of your property.

It’s common to confuse real estate encroachment with an easement, as both involve one property owner extending onto another’s land. However, the key difference is that an easement is mutually agreed upon by both parties.

Easements typically happen when a someone needs access to part of your property for practical reasons. For example, you grant a neighbor permission to cross through your yard to reach a main road, or allow a utility company to cross your property to run power and cable lines for the neighbor.

What Problems Can Easements Cause? 

Here are a few negative ways an easement can affect your property:

• Limited control: Easements allow others access to your property, and you cannot prevent them from using it. For example, an easement that allows access to a shared driveway or pathway may restrict you from parking in certain areas or even using a portion of your driveway for personal vehicles.
• Maintenance costs: You might be responsible for the upkeep of the easement, which can lead to extra expenses. In the shared driveway example, more use means the driveway will need to be fixed and/or replaced more frequently.
• Continued existence after sale: Easements typically stay in place even if you sell your property. This may make your home less appealing to potential buyers if they don’t agree with the easement terms.
• Possible decrease in value: An easement can lower your property’s value. Buyers may be less interested in a property with an easement, especially if it involves utility installations like poles or power lines.
• Unresolved Encroachments: Unresolved encroachments can turn into prescriptive easements. This happens when someone, like a neighbor or trespasser, uses part of your property without your permission. If you don’t challenge this use over a certain period, they may gain the legal right to keep using that area. The specific time frame and requirements for this vary by state law.

Additionally, if you leave an encroachment unaddressed for too long, it can result in an unrecorded encumbrance, giving your neighbor certain rights to use your land.

Options For Resolving Property Encroachments 

If you suspect a neighbor is encroaching on your property, it’s best to address the situation politely and promptly before too much time passes. Most encroachment issues can be resolved, leaving both parties satisfied.

Here are three steps you can take to handle an encroachment issue:

Talk With Your Neighbor

Start by having a conversation with your neighbor about your concerns. This approach is especially effective if the encroachment is minor and easily fixable, like an overhanging tree branch.

Assume that the encroachment is unintentional; this mindset will likely help to keep things calm and level-headed during your discussion.

Sell Your Land, Or an Easement On Your Land, To Your Neighbor

Another option is to sell an easement or the affected portion of your land directly to your neighbor. Once the transaction is recorded by the property clerk, it eliminates any uncertainty and prevents future problems.

Take Your Neighbor To Court

If the first two options don’t work and your neighbor refuses to cooperate, you may consider taking legal action. However, this should be a last resort, as it can be slow, costly, may create ongoing tension between you and your neighbor, and doesn’t guarantee a favorable outcome for you.

The Bottom Line: Encroachment Is An Issue To Resolve, Not Ignore

Most people prefer to avoid conflict with their neighbors, but it can arise from time to time. Encroachments occur, whether intentional or unintentional, so it’s important to address the issue as soon as you become aware of it. Ignoring an encroachment can lead to the establishment of a prescriptive easement, which can limit your options for resolution.