Buying a House with an Encroachment; How to Fix the Problem

If you are buying a house with an encroachment, you should learn important legal definitions and what remedies are available to solve the problem. These issues can be very important for the value of your house and even if you are able to sell in the future.

It is a structure that intrudes on your property
A trespass is subtly different in that it is a violation of use rather than ownership

There are remedies, but they can take time and be costly

While most encroachments can be easily fixed with a reasonable neighbor, it is a good idea to always get a survey before you close to know if there are any major problems that will make your house unmarketable in the future.

Definition of Encroachment

When you buy a house with an encroachment you should learn the legal definition. It is a structure that intrudes on your property. This presents legal issues when you sell a house, but it also presents problems when you want to purchase a property.

It may be a structure that can be easily removed
It may be a part of a larger building that cannot be moved

As a buyer you should make sure that the issue is legally resolved before closing.¹

House With an Encroachment or Trespass

The legal definition of encroachment has to do with ownership of the property, while trespass deals with use; so, it is not a trespass. When someone trespasses on your property they are going through your property to get somewhere else. Examples may be:

Cutting across your property to get to their house
Hunting or fishing on your land

An encroachment is also a serious legal issue you should deal with because it happens when someone practically takes possession of your property. Some examples are:

Building a shed that goes over your property line
Making an addition to his/her house that goes over your property line

While the legal remedies are different for each case, they are both problems you should deal with before you close on a real estate deal.

House With an Encroachment Remedy

When you are buying a house with an encroachment, you need to pursue a remedy. It is always preferable to resolve the issue out of court, but sometimes you have to. In many cases, the neighbor may not even know that he/she has encroached on your land. In addition, most of the time he/she will want to resolve the issue in one of two ways:

Remove the object that is encroaching

Buy the portion that has contains the encroaching structure

Sometimes the dispute cannot be resolved this way. In other cases, the two sides can’t come to terms without going to court. While this is costly and time-consuming it s sometimes necessary.³

Does title insurance cover encroachments?

Title insurance may or may not remedy an encroachment issue. It depends on the severity of the issue, and a court may need to decide if the house is marketable or unmarketable. Each state has different case laws that will affect whether you are successful in your claim. Beyond that, there are no rigid guidelines that determine whether a property is marketable or not.

If the encroachment is small and easy to fix then the property will be deemed marketable.
If it is large, expensive or impossible to remedy then it will be deemed unmarketable.

Some examples of that probably would be ruled marketable are a flower bed, a small shed, or an above-ground pool that extends a few inches over the property line. While a home addition or an inground pool may render the property unmarketable.⁴

Encroachment Agreement

Another remedy is an encroachment agreement. These documents can be useful if the encroachment is too big or expensive to remove from the property. There are three basic things that you should make sure are in the agreement.

Though the owner of the encroaching structure will continue to use the property he/she will not make any future claims on the property they are using
The structure’s owner will maintain it and not hold the other neighbor accountable for any damage caused by the encroachment

If the improvement deteriorates or is damaged then any future structure will not be allowed to encroach.

If you need an encroachment agreement make sure you hire a lawyer to write the agreement to make sure that the language of the document protects your interests.

Final Thoughts on a House With an encroachment

If you are buying a house with an encroachment make sure that the issue is legally remedied before you close on the house. Whether it be a removal of the structure, an abatement of the property, or an easement agreement you should insist on a resolution before you buy.

Even if you are unaware of any encroachment issues you should still have a survey done on the property. These problems are common, and if you find out after the close you will not be able to have the seller fix the problem. Also, you cannot count on title insurance to fix the problem, either. Therefore, we recommend that you spend the extra money and pay for a survey because it will show any problems that may exist before you close and cannot get any remediation for the problem.