Common Ways to Deal With Encroachments

Dealing with encroachment issues can be stressful for homeowners, but there are ways to handle these concerns that can provide a higher level of resolution than others. Additionally, there are legal remedies if the homeowners are not able to settle the issue themselves. Any homeowners who cannot solve encroachment issues to the satisfaction of all the parties involved should certainly seek legal advice. But fortunately, most boundary and encroachment disputes never have to come to that.

Here are some common ways to handle encroachment that can be taken care of quickly, easily, and without legal representation. The more amicable neighbors can be in encroachment cases, the easier it will be to solve the issues and move forward. Getting along with neighbors is not always possible, but it should be the goal for homeowners who live in neighborhoods. Generally, that goal is more easily met by homeowners who are willing to work with one another, talk to each other, and address concerns like boundary or encroachment issues directly and efficiently to solve any problems that are occurring.

Have a Professional Land Survey Done

A professional land survey should always be the first step toward assessing if there is any potential boundary or encroachment issue. In some cases, what one homeowner may feel is an encroachment issue may actually not be one. It is always better to figure that out before things go further. If one neighbor wants another neighbor to move a fence or other structure, that neighbor will first want to verify that the structure is encroaching on the other neighbor’s property.

A land survey conducted by a professional can help ensure that the boundaries between neighboring properties are clearly understood. Then decisions about whether there is encroachment and how to handle it can be more easily made. Encroachment issues do not have to cause a lot of tension between neighbors, provided those neighbors are willing to work together to solve the problem.

Talk Things Out and Offer Concessions

Talking things out and addressing the issue head-on can be among the best ways to solve any problem between neighbors. If a land survey has determined that there really is encroachment, or if the neighbors agree that encroachment is an issue, then it is time to look for a solution. Offering a concession, such as moving a fence line or repositioning another structure, is generally the right thing to do. In some cases, though, that can be very difficult.

For neighbors who do not want to move things or for whom that is really not feasible, another way to potentially solve the issue is to offer to pay for the usage. That can be done through the encroaching neighbor paying a yearly fee to use the land, or even buying the small strip of land on which the fence or structure encroaches. Neighbors who are willing to talk things out can generally arrive at a concession they both feel good about.

Seek Mediation or a Neutral Third Party

For neighbors who cannot agree but who also want to avoid getting attorneys and potentially even going to court, mediation or working with a third party who is neutral in the matter can help. This is generally far less costly than the fee an attorney would charge, and a professional mediator can help both neighbors focus in on the real issues that are bothering them. In a lot of cases the encroaching structure is not in the way of anything else, or the fence line is only a few inches off, so it is not always about using that particular space.

Instead, many encroachment issues are about the value of the land being used, the fact that it does not belong to the user and or the potential liability. By working with a third party and solving the issue through mediation, neighbors have a chance to settle their differences, solve the encroachment issue, and move forward without animosity.

If all else fails, hire a qualified real estate attorney

A good attorney will be able to advise on the best and most cost effective way to settle the dispute. He or she may also be able to advise on weather your title insurance company would be responsible for any litigation.

 

24 thoughts on “Common Ways to Deal With Encroachments

  1. Avatar
    ruth Reply

    morning- what if there is a shared storm drain? I didn’t know there was a shared drain and had my storm drain replaced 2yrs ago. My neighbor has been having flooding problems and had his drain checked with a camera- and said we have a shared drain and felt entitled to replace the drain on my property without telling me. I have called 3 real estate lawyers a civil litigation lawyer (email) and also a zoning lawyer (email) which the real estate lawyers say they don’t do that and I received no response from the emails. THe houses were built in the 50’s- “in my opinion” the shared drain is not necessary. Did he really have the right to put that drain on my property? Are there any other options?

  2. Avatar
    John karalash Reply

    Based on my builders survey certificate I only have 4 ft of usable property between me and my neighbor. His concrete driveway is enchroching my prperty by 12 inches. City clearances are 5 ft
    His bordering living space, ie patio , gazebo structure , flower beds and the list continues , enchroches.When I became aware of this , after many years of ownership,I approached the neighbor and he played total ignorance and simply disregarded the subject
    Question , will this situation have any implication in my property sale.

    • Adam Hoffman
      Adam Hoffman Post authorReply

      I believe it could effect any future sale and the issues would be better resolved sooner than later. My suggestion would be to get your own survey proving these issues and also hire a qualified attorney to protect your rights.

  3. Avatar
    Kenny Reply

    we have a new builder starting a addition project in the farm field behind us. there is about 20 houses on our street that letters that we are encroaching. some are 6ft or more. my question is what can we do? the past owner had the land since 2005 and now they just sold it. the past owner never said anything about any of our houses being over the line. what can we do? if anything..

    • Adam Hoffman
      Adam Hoffman Post authorReply

      Kenny,
      You should contact a local real estate attorney since laws vary state by state.
      There is law regarding adverse possession that my apply.
      Good luck

      • Avatar
        Shannon Hughes Reply

        We just bought 5.2 acres in Lampasas,Tx.
        Our survey proves the neighbor drilled a well,ran power and built a 600 sq ft cabin 30 yrs ago on our lot instead of his. The previous owner didn’t know and the neihhbor is registered with the county as his lot # with the developments on record so I’m thinking it’s a mistake rather than fraud but it’s a BIG mistake.
        It’s a ranch community but the POA by-laws say you can’t split up lots.
        Should we ask for a hearing to establish proof and ask he conceed the cabin?
        The owner is in his 80s and I’m not sure if he can claim adverse possession since we are new owners.

        • Adam Hoffman
          Adam Hoffman Post authorReply

          You will want to get a good real estate attorney who is familiar with adverse possession. I’m not sure if you bought title insurance when you bought the property but that may help defer your legal costs.
          Good luck

    • Avatar
      Debbie Reply

      Hi I bought 14acres and after I had it surveyed I found out that my neighbors mobile home sits on the purchased property..I offered to sell him 2acres which would free him and all utilities water,sewer etc..He’s refusing to buy the 2 acres and now won’t answer his phone to us..My question is what steps do I need to take???Thanks!

  4. Avatar
    shari james Reply

    For over 20 years there has been an encroachment agreement with past owners . If property is to be sold a new encroachment is to be done. Can a new owner , just come in and take over land and start digging up stuff and moving things around. Please advise .. being bullied in Georgia

    • Adam Hoffman
      Adam Hoffman Post authorReply

      Your best bet is to consult with a Georgia attorney who can advise. Laws vary from state to state.

  5. Avatar
    shari james Reply

    Oh and by the way , It was never disclosed of an encroachment agreement with said parties . Until a new owner deciding to buy the vacant property behind me and make a driveway leading up to another house in which he owns and now the wall which divides us he wants to take over and cut out half of my driveway to do so.

  6. Avatar
    Nixole Reply

    We just bought a house where the neighbor behind us built a driveway on our property, so many years ago. Is there anything we can do now being new owners? There were no easements with the title. Any suggestions would be great.

    • Adam Hoffman
      Adam Hoffman Post authorReply

      Nixole,
      Laws vary from state to state so I suggest seeking the advise from a local qualified surveyor or attorney.
      I believe it will be pens on how long the encroachment has been there.
      Thanks

  7. Avatar
    Chuck Peterson Reply

    We’ve purchased property in SC and the neighbor has a substantial amount of debris on our property. The survey is 20 years old but the markers are very visible and the neighbor is aware of the boundary. We plan to ask if he would like help removing the debris (who knows – maybe it’s his special treasures but it looks like trash to me). I’m concerned that he won’t remove it in a timely fashion. It’s on unimproved land and we intend to plant a row of pyracantha as a border. I might be borrowing problems but, how do we handle junk removal if he’s unwilling to take care of it in a timely fashion?

  8. Avatar
    Kathy Reply

    The property next to ours is owned by an association. They recently had a survey done and discovered that part of our driveway is encroaching. For 30 years we’ve had this driveway and paid for dirt fill, maintained the property, cut down fallen trees, planted trees and shrubs and had bonfires to rid of any fallen trees. We have also been members of this association for 30 years, served on the board and had several board meetings at our home. We received a certified letter notifying us that they are willing to discuss an easement. To minimize court fees, attorney fees etc., is a prescriptive easement a good alternative to a Adverse possession as long as it can be transferred to new owners if we ever sell our home?

    • Adam Hoffman
      Adam Hoffman Post authorReply

      Kathy,
      Laws vary from State to State but sounds like you have a Prescriptive easement and you would want to get an actual deed to it so it can be transferred when you sell your property.

  9. Avatar
    Shannon Reply

    What about if their fence is encroaching the road that is maintained by the HOA and the property owner refuses to move the fence? What should be the next step the HOA takes after a survey is done?

    • Adam Hoffman
      Adam Hoffman Post authorReply

      Once the survey proves the fence is on HOA property one can determine the next steps. Most likely its now a legal matter and I would guess the HOA attorney would advise the homeowner to move the fence.

  10. Avatar
    Ginny Reply

    We recently discovered based on property photo/map on our auditor’s website, that a neighboring property has put a swing set on a corner of our property that is adjacent to theirs. It’s at the back of 6.5 acres, on the other side of a creek and some woods, so it’s not something we see.

    What is our liability if someone gets hurt there? Should we ask for them to remove it? For them to sign a paper stating we’re not responsible?

    • Adam Hoffman
      Adam Hoffman Post authorReply

      You may be liable. You can ask for them to remove it or ask an attorney to write up an agreement that states they can keep it there until it needs to be replaced(Then move it onto their property) and also hold harmless clause.

  11. Avatar
    MICHAEL W MORGAN Reply

    My daughter and her husband purchased a home in Ohio and according the the mortgage survey they owned a 200′ x 200′ lot with a single family home on it. While preparing to improve the property the neighbor to the East indicated the improvements would be on his property. I paid for a boundary survey and sure enough the legal property line is shifted 40′ to the West. This shift now places the neighbor to the East in view. The neighbor to the West has his entire driveway on my daughter’s property. (The driveway is gravel but is very near the dwelling on that property) The Rental agency responsible for this property has suggested they be given and Easement or sell the property to them. This action would vastly shrink my daughter’s land to the point of their future expansion would not be possible.

    • Adam Hoffman
      Adam Hoffman Post authorReply

      Sounds like you need a good real estate attorney to advise you. These things get tricky.

  12. Avatar
    Ben Reply

    My fence was becoming dilapidated and falling over at some points (poor construction by the builders). I contacted my neighbor via text and let her know that I would be fixing it. She responded positively. I was pretty slow to finish it as I work full time and the COVID19 stuff causing other issues, but she saw that work was being done over about 2 weeks. I had run into an issue while digging the post holes where I was hitting heavy rock or concrete from the previous post. I informed her in person about the issue and let her know that it may be a few (4-6 inches about) on her side. She said “oh, no big deal.” an asked if she owed me anything. I said it’s no problem and even rebuilt her sagging gate when I got to that section. Fast forward about 2 months and she casually asks me if I can move the fence back as she is worried about losing her land value. I explained the difficulty (I built this to last), reminded her that I had informed her of the possible encroachment and even offered to sign an agreement verifying her land, pay her for the lost land, or continue the rest of the fence on my side to replace the amount of land lost and have the property lines redrawn at my expense. Her response via text about 2 weeks later was that she wants the fence moved. What would be your best advice as moving the fence would be very difficult, time consuming, and costly.

    • Adam Hoffman
      Adam Hoffman Post authorReply

      This is more a legal matter. You should retain a good real estate attorney.

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