An “encroachment” is a term used in property law that refers to when one property owner builds or extends a structure to the point that it reaches their neighbor’s adjoining property or land. In doing so, it will result in a violation of their neighbor’s property rights.
In other words, unless there is an easement or the parties already have an agreement in place, no one has the legal right to build any type of structure on their own land that will extend beyond their property’s boundaries and encroach upon that of a neighbor’s land; no matter how small of an encroachment.
This principle is true regardless of whether the encroachment is above or below the surface of the land or property in question.
In addition, a continuing encroachment is considered to be both an action for trespass and a private nuisance at common law. However, when it comes to an actual lawsuit, states differ in regard to who must be aware of the encroachment as well as how each state handles the issue of removal.
Lastly, although most encroachment lawsuits are brought by private parties, it is possible for a person to encroach upon public property, such as if they build or extend a structure onto a street or sidewalk. In such a case, the government will not need permission to remove that part of their structure. The government will also not need to pay for any damages they caused during the removal process.
What Happens If My Contractor Encroaches on My Neighbor’s Property?
If a landowner decides that they want to build or extend a structure on their property, they cannot shift the liability to their contractor in the event of an encroachment lawsuit. The reason for this is because the location of a building is the responsibility of the property owner.
Therefore, the property owner is the one who will be held accountable for any encroachments of the structure caused by the building contractor. After all, the contractor is essentially hired as an employee at the owner’s command in such a situation.
Will My Neighbor Become the Owner of the Part of the Building that Encroaches?
A neighbor will not own the part of a structure that encroaches on their land. Instead, the encroachment will be viewed as an act of trespass.
Also, although the neighbor will be able to sue that person for trespass, they will not automatically gain legal title to the portion of the building that is now on their land. To gain legal title, they will either have to purchase it or obtain it through adverse possession.
Can a Tree be an Encroachment?
When tree branches extend over adjoining land plots, they are usually considered to be a nuisance. In such cases, the owner of the land that the tree is encroaching on is permitted to cut down any branches that are hanging over onto their property.
In order to prevent any future disputes from occurring, it may be in that person’s best interest to politely ask their neighbor before chopping down any encroaching branches. However, since the property being encroached on does belong to them, it is not necessary that they ask or tell the other party before doing so.
Can I Collect Damages for an Encroachment on My Land?
Since an encroachment is seen as an invasion of a person’s property rights, that person may be able to recover a damages award for any harm that was suffered due to the offending encroachment. The amount of damages a person can receive will primarily depend on whether the harm done to the land was permanent or temporary.
If the court finds that the harm is permanent, then the damages award will be the difference between the value of the property immediately before and immediately after the injury.
On the other hand, if the harm is only temporary, the amount received will be the reasonable cost of repairs needed to restore the property to its original condition, plus the loss to the owner of not being able to use and enjoy their property.
Can I Remove the Encroachment Myself?
As previously mentioned, an encroachment is also considered to be a private nuisance. Therefore, a landowner generally has the right to remove the encroachment themselves.
Do I Need to Hire a Lawyer to Help Resolve My Encroachment Issue?
Issues involving property law matters can become fairly complicated. Part of the reason they pose so many challenges is because property law usually varies according to the state. Thus, what is approved or recognized by one state law, may not be the same rule applied in your state.
Therefore, if you are facing issues that involve an encroachment on your land, or alternatively, if you have committed encroachment upon your neighbor’s land, then you may want to speak to a local real estate attorney for assistance.
An experienced real estate attorney can research the laws in your area and discuss the rights that you have as a property owner. Your lawyer can also help you file an action against your neighbor or can try to defend you from the legal consequences of an encroachment lawsuit.