What is an Encroachment Agreement?
An encroachment agreement is a contract between two or more adjoining landowners concerning the use or occupation of a specific part of one’s property that encroaches upon the other’s property. It is typically required in connection with a boundary issue, meaning that the encroachment involves a structure, fence, tree or other improvement that straddles the boundary line between the properties and is on the adjoining neighbor’s land. Both landowners must consent to the terms of the agreement. The encroachment agreement in most circumstances will specify how the encroachment will be used, and whether the affected landowner is responsible for any repairs, if any ever needed . It is possible that the encroachment agreement may only involve how an affected landowner may use the property.
Encroachments may also involve a claim of adverse possession, where it is alleged that the encroachment was on the neighbor’s property for long enough (which varies from state to state) and possesses certain elements, to become one’s property.
Encroachments may also affect a party’s insurance coverage. Both parties should make sure that their homeowners or property insurance is properly updated to reflect the encroachment.
Common Reasons for Neighbors Encroaching on Property
Encroachments often arise from a number of common causes on the property line between neighbors. In many circumstances fences can be the source of an encroachment issue when a fence is not aligned correctly along the boundary or if the fence extends over the boundary line altogether. In fact, many fences that are built will become over time the legal boundary line as well if they have been up long enough without challenge from the adjoining owner. Buildings, gutters and other structural components can also cause encroachments. As townships and municipalities expand there are instances where a driveway that has been built or used for years by a developer or builder may really encroach on a neighboring property owner. Sometimes a landscaping issue can be the cause of an encroachment. Interestingly, sometimes fence encroachments are the result of something as innocent as a neighbor planting a bush on the boundary line and the bush growing more than anticipated.
Legal Consequences of Encroachment
Encroachment can lead to legal issues such as lawsuits, property disputes, and lost property value, which is more expensive than paying for a fence or removal of the structure. If the fence has been erected for a long period of time then the person who built the fence may have adverse possession.
A lawsuit for trespass, quiet title and/or interpleader may be the best course of action to reclaim the property. In civil actions, there are various claims that can be made to address issues relating to encroachments. A trespass claim is often used to address the invasion of a property right not necessarily based on physical damage to the property. A good example of a trespass is a neighbor building a driveway that encroaches on the property of the adjacent neighbor. Trespasses may also be based on invasion of airspace or light as well as trespasses involving priority of use (i.e., the earliest party to have an encroachment on property). When filed with an action for damages or injunction or both, a trespass claim often provides a basis for amicable resolution. By bringing a claim for trespass, courts are in a position to determine whether you have legal ownership of the property and whether that ownership has been extinguished by an encroachment on the property. Encroachments may also relate to adverse possession. Property ownership is determined by vesting the title, taking possession and exercising dominion over such property in a manner that shows current, exclusive, hostile and adverse use. If an encroachment has existed for 15 years, a court may be in a position to presume that one has adversely and openly possessed such property. An interpleader claim often falls under the same fact pattern as a suit in equity and is a helpful means of adjudicating an issue where parties with "adverse claims" may have an interest in the property but the other party is not interested in continued litigation of the property interest. To have an interpleader action, the parties must have "adverse claims" relating to a specific thing, service or duty which the party who is the "stakeholder" is willing to provide. The stakeholder has no interest in the subject matter or is indifferent to which party ultimately prevails in litigation. A judge can distribute the property via an interpleader action.
Creating an Encroachment Agreement
The agreement should be carefully drafted in order to achieve the desired goals. An encroachment agreement should include at a minimum:
- the description of the land affected by the encroachment, including the depth of any encroachment;
- the definition of the "encroaching property" and "encroached-upon property;"
- a statement that the party whose property is encroached upon consents to the encroachment;
- the express prohibition that the encroaching property be enlarged or extended;
- a provision requiring written notice to the parties if the encroachment is ever altered, including the size or dimensions of the encroachment;
- a provision setting forth the right of either party to compel removal of the encroachment in the event that either party sells or leases their property to someone unassociated with the encroachment agreement;
- a provision allowing either party to compel removal of the encroachment if it extends beyond its original dimensions and/or limits; and
- a provision requiring the encroaching party to maintain and repair the encroachment and the encroached-upon party to allow such access as may be necessary.
Mediation and Negotiation Strategies
There are two preferred approaches to resolving neighbor disputes: negotiation and mediation. This post addresses those two approaches to help neighbors achieve the goal of reaching agreement on encroachments/intrusions.
Negotiation with the Neighbor
From time-to-time, even the best of neighbors find themselves in a situation where property is introduced from one property onto another. It may be landscaping that became a little too exuberant and is now on someone else’s property. It may be a tree that has grown trunk-sized roots into the neighbor’s property, or overhanging branches that, if too long, can become a nuisance. One common situation is a fence or fence post that started on one side between two properties and, for whatever reason, made its way gradually onto the neighboring property.
At this point in the process, neighbors should sit down together to discuss the issue. A humble approach is a better way of resolving a dispute than by adopting an aggressive posture. The goal here is to agree on how to remedy the intrusion, without pitting neighbors against each other. While this sounds easier than it sometimes can be, reaching an understanding will be financially advantageous to both neighbors , as discussed below.
At the meeting between neighbors, both parties should consider all options to remedy the situation, before simply bearing down with a message that the encroachment must be removed. Further, if there is some measure of encroachment that is shared by both parties (for instance, a tree that actually grows on both properties), the issue might be more easily resolved by sharing the costs for removal and/or replacement.
Mediation
The process of mediation involves hiring a qualified mediator to listen to both sides of the dispute and to suggest resolution techniques. Interestingly, mediators from real estate backgrounds are more likely to resolve property disputes than are non-property mediators. From my own experience, even with good mediators who have some knowledge of real estate disputes, the real estate specialists will more often suggest remedies and settlement options that have worked for them in the past. Sometimes, such remedies fall short of a complete fix, but provide enough comfort to the property owners to move forward positively. Mediation can be completed in a single day session, or in a number of shorter sessions, depending on the complexity of the issues involved.
Seeking Legal Help and When to Get It
Cost, jurisdictional differences, and familiarity with local customs and practices are the most significant factors a homeowner should consider prior to hiring a lawyer to draft an encroachment agreement. In general, it is advisable for Texas homeowners to seek legal advice if the encroachment agreement involves a long-term (greater than one year), or permanent loss of property rights including:
1. the right to define, post or maintain a particular boundry line; or,
2. the right to possess and/or use all or any part of the homeowner’s improvements and/or the homeowner’s exclusive use and access to the land on which those improvements are located.
Although stating the obvious, a homeowner may find that it is extremely difficult if not impossible to seek a neighbor’s consent or even an agreement to share the cost of maintenance when the homeowner has occupied the land for many years. By seeking legal advice, a homeowner will better understand the effect of this long-standing practice, both in terms of the potential benefit and/or the loss of adverse possession claims. Disputes over the ownership and use of property rights can be costly and often have real property implications that extend beyond the borders of the encroaching homeowner’s lot.
Examples of Neighbor Encroachment
In the course of my practice, I have always struggled with presenting my readers with real cases they can learn from. However, it is just not practical to publish those cases in the substance they could be learnt from. I have hand selected a few cases to give you an idea of what may be involved in an encroachment dispute so you have a little bit of legal context and flavor to work with. It is important to note that an insured neighbor dispute can be settled by any number of different parties including a developer or even your own family members. However, for the sake of convenience here we will use the good old neighbor to neighbor dispute.
CASE: Jones v. Smith
FACTS: A tall fence has been built right up to Jones’s property line. There is no fence between Jones and Smith. Smith says that Jones asked him to build the fence on Smith’s property to provide Jones with the privacy of a backyard without having to build the fence on Jones’s property. The fence stands on the property line.
ISSUE: Encroachment on property line.
DECISION: The fence must be moved back onto Smith’s property. Smith said he had permission to build the fence on Jones’s property line. The Supreme/Superior Court ruled that permission could not be given to another person to commit a trespass. In other words, a wrong without more cannot be made right by agreement between the neighbor who suffers the trespass and the neighbor who commits the trespass.
THE LESSON: The reason for this is that if Smith was allowed to keep the fence on Jones’s property, in the future Smith might sell his home and then the subsequent homeowners would have the same right to keep the fence there. Smith could not stop a future homeowner from keeping the fence on Jones’s property. Smith may now be able to do something about it because he has acquired a prescriptive right to use the land for the fence.
CASE: Myerson v. Lawrence
ISSUE: This case comes down to what is a boundary line dispute.
FACTS: Myerson owns a house on a large property and Lawrence owns a house on a smaller property, which is adjacent to Myerson’s. Myerson has installed a swimming pool. Lawrence has a home office. Lawrence’s home office overlooks Myerson’s swimming pool.
DECISION: Lawrence brought an action against Myerson to "remove his environmental impact." Lawrence wanted Myerson to remove the pool because of the environmental impact it had on his home office. The court held that although Lawrence had standing to complain, Lawrence was bound by the rules of common law pertaining to nuisance. In this case, Lawrence could have built his home office in such a manner in the direction of Myerson’s swimming pool without violating any laws. The decision favoring Myerson had to do with the fact that Myerson had done nothing illegal in installing the swimming pool.
THE LESSON: The gist here was that the common law pertaining to nuisances would apply and there simply was no nuisance created by a lawfully constructed swimming pool.
How to Avoid Future Encroachments
Preventing Future Encroachment Problems
To avoid the problems associated with encroachments, it is essential to clearly define property boundaries and to communicate regularly with neighboring property owners. While fences can sometimes provide a clear line of separation, this is not always the case for other boundaries such as garden beds or driveways, either due to vegetation growth or due to a lack of visible width markers.
If a fence is the boundary, it is advisable for adjoining property owners to regularly check the fence for leaks or damages which could cause the fence to shift and affect the position of the boundary . Other clearly identifiable markers, such as a clearly marked fence or a property line painted on the ground, can help future owners determine where a boundary existed especially if a fence is damaged or does not exist entirely.
If an agreement with the neighbor is being registered on title, it is important to not change the survey description provided in the agreement and to ensure all information is correct. Largely the accuracy of an agreement rests on the buyer obtaining a complete and accurate survey.
As with most issues with real property, it is always better to communicate early and often with all parties involved in the agreement. Where encroachments cannot be easily resolved, they do not easily go away and will only be further complicated in the future if left unresolved.