A structural encroachment is a trespass where your neighbor erects or adds support to a building that goes over your property line. This usually is a major problem that can be expensive and time-consuming.
- A structural encroachment is adverse possession.
- The law treats it as trespass.
You should deal with the problem as soon as possible. If your neighbor will not or cannot remove the structure easily, then you should contact a lawyer. You may be able willing to grant use of the land, or you may end up in a lawsuit with them to remove the building. Either way, you need legal help to draw up the necessary documents, because it will create an encumbrance on the property.
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What is a Structural Encroachment?
A structural encroachment is an encroachment that is part of a structure or supports a structure. This is a major problem because it leads to adverse possession if you do not deal with it.
What is a Property Encroachment?
A property encroachment is anything that extends over one neighbor’s property onto another’s. These may be minor, and you can simply talk to your neighbor and resolve the issue. Examples of minor encroachments may include a(n):
- Overgrown shrub
- Overhanging tree branch
- Garden or flowerbed
Usually, you can remedy these easily, and it will not lead to major problems. On the other hand, examples of major encroachments may include:
- Fences
- Driveways
- Home additions
- Decks
- Sheds
- Additions to the home
These are usually expensive to remedy, and they can lead to adverse possession if you do not deal with the situation. In other words, your neighbor may be able to take possession of the land that he encroaches on if you do not do anything about it.1
Why is a Structural Encroachment a major Problem?
A structural encroachment is a big problem because it is not de minimis and can lead to adverse possession. De minimis is Latin and lawyers use it to describe something that is insignificant. Structural encroachments have two characteristics:
- They are part of a structure.
- Or they provide support for something else.
If you do not deal with this problem in a timely manner, then your neighbor may be able to get an easement or take adverse possession of the encroached land.
Property Line Encroachment Laws
What does the law say about property line encroachments? It is a trespass. In other words, they use your property without permission. You can sign legal documents granting permission, and then it becomes an easement. However, if you do not do anything they may take legal possession after a statutory period. This is called adverse possession.2
When Might an Encroachment Become an Easement?
An encroachment can become an easement. To see why you need to understand the difference between the two. An easement is the use of a neighbor’s property with consent, but an encroachment is used without consent. Therefore, you change an encroachment into an easement by granting permission.
Why would you do this? A major encroachment can be costly and difficult to remedy. It may be much easier to let your neighbor use your property rather than remove the building. On the other hand, you do need to deal with the issue legally to avoid a case of adverse possession.
What is Adverse Possession?
Adverse possession is a way for a trespasser to establish legal title to a property. To do this they must meet several specific legal requirements:
- Actual – They physically possess the land in question.
- Open – They do not try to hide their use. It is obvious to anyone.
- Hostile – They do not have permission from the actual owner.
- Continuous – They must use the land for a statutory period.
The statutory period varies from state to state. It is usually at least seven years, but it can be up to twenty years. If you suspect that your neighbor is encroaching on your land you may have plenty of time to remedy the situation, but you should not delay. Major encroachments can be difficult and costly to fix. You may even face a legal battle.
Things To Do in a Case of Structural Encroachment
The most important thing to do is keep an eye on your property. If you suspect that your neighbor is encroaching on your property, then here is what you should do:
- Get a survey – Know the legal boundaries of your land.
- Talk to your neighbor and try to get them to remove the structure.
- Give written permission to use your land, but make sure you also get a written acknowledgment.
- Rent the property to the trespasser(s).
- Call the police.
- Hire an attorney and sue your neighbor.
Before you do anything, get that survey. Make sure that your neighbor is trespassing before you do anything else. After that, talk to your neighbor, especially if you have a good relationship. Often, they do not even know they are building over the property line. They may be able to remove the building. If you permit them to use the land, whether you rent it to them, consult an attorney before you make the arrangements. You want to make sure everything is legal. Only as a last resort call the police.3
Final Thoughts About Structural Encroachment
Structural encroachments are major problems that can lead to costly remediation, lawsuits, and adverse possession. The best way to keep this from happening is to keep an eye on your property. Always have a current survey and pay attention to what changes your neighbors are making to their properties.
If you do have to deal with a structural encroachment do not do it alone. This can get very complicated and include easements and variances as part of the solution. Get legal advice from a competent real estate attorney in your area. These laws are complicated, and they vary quite widely in different areas.
