What Is Property Line Encroachment?
Property line encroachment occurs when one owner builds or places structures, plants trees or bushes, or extends a fence beyond their property line and onto an adjacent owner’s property. An encroachment into the neighboring property by an owner may or may not be intentional. For example, a homeowner might miscalculate the width of their fence and build the fence two feet inside their property line. An intentional encroachment might occur when a developer has purchased two lots and builds one house straddling the property line resulting in a fence encroachment on an adjoining lot.
When a property line encroachment is discovered, the property owner who is encroached upon has a choice. They can ask the encroaching owner to remove the encroachment , or seek damages incurred by the encroachment. The property owner may also take no action at all because the encroachment holds some sort of benefit to their property.
If you are one of the many homeowners who do not see any harm in their neighbor encroaching upon your land, you must think carefully before making any decisions. The area that is encroached upon now belongs to the encroaching owner. It becomes very difficult to reverse that transfer of ownership should your neighbor try to make improvements to that area.
Property line encroachments can also become a Title and possible insurance claim if not correctly documented in the Title policy exclusions. Worst of all, the encroachment could possibly leave the encroaching owner responsible for environmental remediation costs (if that is the cause for the claim).
How Property Line Encroachment Works Legally
When an encroachment has been identified, owners may face a variety of legal consequences and may ultimately have to answer for the use of property that they did not own. In some cases, you may be awarded damages and equitable remedies to address the issue. However, in other cases, you may be forced to pay damages and to terminate the lease agreement, particularly in cases of adverse possession. Under no circumstance is the encroachment ever permitted, just as it is understood that the property owner has exclusive use and enjoyment of the land unless he or she leases it to someone else via contract. Code violations can also carry penalties unless you address the issue prior to obtaining a code inspection. Failure to do so can result in fines, a suspension of your building permit, or even being blocked from obtaining a rental license.
Dealing with Issues of Encroachment
The best approach for property owners is to begin by addressing the suspected encroachment with the neighbor. Explain that the structure is on your property and ask the neighbor to remove it. The neighbor may have not been aware of the boundary line, or it may have been an innocent mistake. Be prepared to provide proof of ownership of the encroached-upon land, such as a recent survey. If an amicable resolution is not possible, alternative dispute resolution options – such as mediation or arbitration – may be appropriate. Even if a LLCC "mediation" clause is absent from the exclusionary provision of CCALTA, most LLCCs have adopted some other form of mediation. Even if there is no LLCC "mediation" clause in the CCALTA, the LLCA’s Bylaws may provide for mediation. Under Sections 28 and 29 of the Civil Code, for example, the process for resolving a dispute includes an initial meet-and-confer session between the parties in an attempt to resolve it before either party can file a lawsuit. In addition, under the Davis-Stirling Common Interest Development Act ("DSCID"), parties may voluntarily submit to mediation or binding arbitration to resolve a dispute. If the matter cannot be resolved in this manner, the property owner may bring a lawsuit against the encroacher to ask the court to remove the offending structure or item from the property, and/or recover some form of monetary damages, for example, for trespass or for loss of use of the property. Keep in mind that if it is a fence, the offending neighbor may be able to obtain an easement as long as the fence is used to confine animals to your property. In that case, the neighbor would have legal rights to maintain the fence on the property, even though it is on land that belongs to you.
How to Prevent Encroachment Disputes
There are a variety of means by which these matters can be prevented or avoided. First and foremost, a property owner is encouraged to be diligent in maintaining what appear to be proper boundaries with neighboring properties. While many surveys of larger tracts of land are maintained at the county recorder or assessor’s office, this is not always the case with properties in residential, commercial, or industrial subdivisions. Not only does a larger measurement generally exist between houses and other buildings, but also retention of this information is usually more practical. Accordingly, it is wise to have an experienced surveyor perform an accurate survey of the neighborhood prior to acquiring the property. At that time, the surveyor would often be able to advise the acquiring property owner of the most likely configuration of buildings and improvements which have existed for some time, in addition to identifying possible areas of encroachment. Not only may this assist in the acquisition of the property, but also, and importantly, the potential sales price of the property may be less if such problems exist.
Second, property owners should be cautious not to accept or acquiesce to encroachments without reservations or qualifications. In this regard, a property owner should immediately contact neighboring owners who explore or create encroachments onto this property and insist that such encroachments be promptly removed before injuries occur . The principle is that not only will property owners often be required by law to maintain neighboring encroachments, but also no excuse is promised or should be expected for a delay in requesting that encroachments be promptly removed.
Third, objectionable encroachments into one’s property should be promptly removed. In that regard, a property owner would not be permitted to join in the encroachment by allowing a neighbor to use the property with the intention of granting a lease or license to do so, as that would in effect be acknowledgment of the encroachment.
Fourth, while a property owner is permitted to waive and acquiesce to an objectionable encroachment, so long as doing so does not unreasonably interfere with the property owner’s rights, a property owner is not permitted to unduly delay acquiescing to such encroachments where the benefits to the encroaching property owner will outweigh any harm to the property owner.
Finally, any encroachments created on the property of others should be promptly removed. This principle is especially important if the encroaching property owner intends to continue to use the encroachment by placing a structure over the encroachment. In some areas, applicable statutes may prevent the code enforcement agency from requiring removal to the extent an area otherwise allows such a structure to be maintained.
In summary, property owners should be encouraged to have an accurate survey performed promptly after acquiring property and they should neither acquiesce to encroachments nor permit encroachments without acknowledgment.
Relevant Laws and Legal Considerations
Laws governing property line encroachments vary by state. Under the legal concept of adverse possession, for example, a landowner may be able to claim property right by ownership of an unregistered portion of an adjacent neighbor’s property. However, most land title lawyers agree that meeting the requirements for an adverse possession claim is extremely difficult in Florida, Alabama and Mississippi.
Florida law requires a year-long period of "actual and continuous exclusive occupancy" of the disputed land without the owner’s permission in order to claim adverse possession. A successful claim also requires a good faith attempt to be recorded and justified. Assuming the claimant can meet these requirements, Florida law entitles the owner to collect a rental fee from the encroaching neighbor for the year preceding the claim.
While property owners can’t stop neighbors from encroaching, they can file a claim for damages resulting from the encroachment. The law in Florida, Alabama and Mississippi permits both temporal and permanent damages. For example, a property owner might be able to receive awards for the diminished value of the property, harm to crops or loss of profits, permanent damages, damages for trespass to land and lost rental income. Still, these damages tend to be limited by the time the encroachment has been taking place and move upward to an amount equating to the cost of the property.
Many states across the country have enacted Right-To-Farm Laws that are designed to protect farmers from lawsuits, which don’t apply to property grabs by neighbors. The law is intended to ensure access to property for agricultural purposes only. Some courts interpret these laws as protection for "good faith" farmers who are simply concerned about nuisance and trespassing by neighbors.
In considering property line encroachment cases, courts look at the legal concept of sufficiency, which determines whether the physical and emotional damages warrant a reward. A "sufficiency analysis" considers all the circumstances of the case and evaluates the:
New York law prohibits neighbors from planting or installing fences on a property in such a way as to encroach on the neighbor’s land. In Georgia, owners can seek both actual and punitive damages for encroachments.
In the southeast, individual states have different statutes of limitations. Property law forged in Common Law states like Alabama and Florida requires that a landowner wait only 20 years to sue, but only 7 years in Louisiana and 10 in Tennessee.
Examples of Property Line Encroachment
A well-known case in California, Neary v. Hearst, dealt with a situation where an owner of land on a steep hill encroached onto the property of an adjacent owner. When Hearst attempted to build a road across the neighboring property, Neary filed an action to quiet title to the disputed land. The neighbor’s encroaching road was apparently built before the requirement to get a permit occupied Adams’ property, but it was quite older than the recent parcel map requirement. The trial court found in favor of Hearst, determining that Neary had made a grant of the property by allowing the road to be constructed and used for an extended period of time. The Court of Appeals reversed because Neary had not granted an easement, conveyance or other right of way. It further determined that the period of use of twenty years precedent to the statutory period of five years was insufficient to establish a prescriptive easement. Following Neary, several other early cases introduced the evidentiary standards for claims to quiet title. In the case of Arnold et al. v. Mundy, two adjoining landowners found themselves in disfavor with their neighbors. Mundy oversaw the claim that an easement granted by prescription had been created on the land of the adjoining property and individuals Arnold and Mundy on one side of Crystal Lake, as well as the Claire I. Buley and her late husband, Dave, on the other, dominated the litigation. This court established what would later become known as the "hostile" and "exclusive" tests . The depravity of the neighbors could insulate against the adverse possession claim. Since both Arnold and Dave were aware of the impact of their actions, and were the only ones developing their side of the property, the claim for easement by prescription was denied. A second case, MacDonald & Associates v. Joslin, involved a surveyor who had employed the help of the Appellant to clear the one-ninth of a lot sold in 1973 to the Appellant. After surveying the land, the Dominics discovered the land-clearing and sue the state of Colorado for trespassing. Unlike the Hostile and Exclusive tests of Arnold, that fact pattern was sufficient to win a ruling in the Appellant’s favor. As the surveyor had only been in his position by assignment from the state of Colorado, the belief that he had the legal right to either legally assign the title to the disputed land was enough evidence of his good faith. Surveyor Jen McKenzie accepted Plaintiff’s view of the land and did not obtain enough information to assess the varied use. As a reasonable person, she should have asked around for assistance before entering into a contract. The last case, Willson v. City of Riverside, was resolved in court. Willson hired a contractor to erect various structures over the years, but as the improvements progressed, the plaintiff sued the city of Riverside and his neighbor Allen to quiet the title of the disputed land. Although Willson claimed it was unintentional, his accepting of the boundary line along the fence established a legal boundary. The case was resolved in Willson’s favor.