You should not sell Property with an outstanding encroachment issue. These issues must be resolved before you close because it clouds the title. No buyer should finalize a transaction that will leave them without clear ownership of the property.
- Encroachment is the unwanted use of your land by someone else.
- There are decisive steps you should take to remediate the problem before you sell your home.
Even if you don’t think there is any encroachment on your land you should hire a professional if you don’t have a recent survey in your home’s records. Your neighbors may make improvements that could encroach on your property.
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What Does Encroachment on a Property Mean?
An encroachment occurs when a person uses your property without permission. This is like an easement. However, with an easement, the person has legal permission to use your land in a specified way. Because surveying techniques have evolved these issues aren’t as common. However, they still occur. Some common examples include:
- Fences not properly lined up with the property boundary.
- House additions
- Storage sheds placed at the edge of the lot.
- Driveway expansions
While most of the time these are honest mistakes, they can be very costly to remedy. Also, your neighbor may disagree with your survey and question the true boundary.
Can I Remove an Encroachment?
You can remove an encroachment. Legally, it is private nuisance, and you have the right to remove it yourself. However, most of the time this is a large undertaking. This may not be the best way to handle the situation, though. It may be better to work with your neighbor to resolve the problem together.
In some cases, it is impractical to remove the structure on your own, and in other cases, it may be simple for your neighbor to easily fix the problem. If it is something simple like moving a shed, then your neighbor may be agreeable without hesitation. However, if it is a permanent structure, such as an additional room on the house, they may want to remediate the problem another way.
They may, also, question your survey. If a fence is in dispute, they may believe it is on their property. There are remedies even if removing the encroaching structure isn’t practical. For instance:
- Sell the encroached upon the property to your neighbor.
- Written, legal permission to use the property.
The last resort should be legal action. It is expensive and may not go the way you want. In the best-case scenario, the court grants you an ejectment action. This allows you to remove the encroaching structure. On the other hand, the court may grant your neighbor a prescriptive easement. Finally, if your neighbor has encroached on your property for a long time the court may give the disputed property to your neighbor because of adverse possession.1
Is Encroachment a Crime?
Encroachment is against the law. Courts consider a continuing encroachment:
- Trespass
- A private nuisance
The remedy is usually in civil, rather than criminal court, though. If you can’t agree with your neighbor about how to resolve the conflict you sue him/her for removal of the offending structure.2
Steps to Take Before You Sell Property with an Encroachment
You should resolve encroachment issues before you sell your house. In many cases, you can resolve your dispute simply and inexpensively. However, in many cases remediation is difficult and expensive. Further, your neighbor may not agree with your survey findings or be cooperative with removing the encroachment.
Survey the Property
The first step is to hire a surveyor to map the exact dimensions and nature of the encroachment issue. reliable, professional survey strengthens your claims. It gives legitimacy to your dispute. Without a survey, it’s just your word against your neighbor’s. Furthermore, your neighbor may have a survey that contradicts your claim. Therefore, don’t enter any boundary dispute without first surveying your land.
Talk to Your Neighbor(s)
Once you have a clear description of the encroachment talk to your neighbor. Most of the time you can clear up the problem amicably. There are several ways you remediate the problem.
- Remove the encroaching structure.
- Sell the encroached land to your neighbor.
- Enter an agreement that states your neighbor can use your land for a specific purpose.
If you sell, then you should hire an attorney to draw up the contract and file it with the government. This ensures that there won’t be any cloud on the title. Likewise, you should get a lawyer to write any land-use contracts. If you do nothing then your neighbor can, after enough time, claim the land because of adverse possession. Therefore, make every effort to remediate the encroachment.
Hire an Attorney
If you can’t resolve the issue with your neighbor through face-to-face negotiations, then you need to hire a lawyer. Since it is illegal for your neighbor to encroach on your land there are legal avenues you can take. This should be a last resort because lawsuits are expensive, even if you win. Further, it almost certainly will poison any relationship you have with your neighbor.
Final Thoughts on if You Can Sell Property with an Encroachment
Selling a property with a known, unresolved boundary dispute will be very difficult. Most buyers won’t want to enter a contract for land that is disputed. In addition, it clouds the title, so banks won’t agree to underwrite a loan. The best thing to do is deal with the problem and resolve the dispute before you list your home to sell. Ignoring the problem, in the beginning, will only lead to more problems later.
