A Word about Encroachments

Easements and Encroachments

So my real estate topic-du-jour is encroachment, as I spent an hour or two dealing with an issue I have with an upcoming listing.  It seems that many years ago (15-20) the sellers of this home added on a room, and that this room crept over the property line.  I noticed this straight away when I first went to visit the home, as there was a bright orange survey marker near a corner of the house, which seemed to indicate that the house was a bit over the property line (less than a foot, in this case).

So what’s to be done  in a situation like this?  Technically, the owner who is being encroached upon (the “encroachee”) has the right to just start hacking away at the encroaching bits of the house, to remove it from his property.  Of course, were anyone to actually do this, the owners of the property which is encroaching (“the encroacher”) would take out a restraining order, an injunction – something – such that the encroachee would have to stop the effort to remedy the encroachment.

In this particular case, because the home has been encroaching for 15-20 years, the encroachers may have the right to a prescriptive easement.   While it is by no means assured that the courts would grant the encroachers the easement, it’s certainly possible.  What’s virtually certain, though, is that any lawsuit(s) issued by the encroacher or encroachee would be time-consuming and very expensive.

Certainly, if the amount of land being enroached upon is significant or in any meaningful way detracts from the use and enjoyment of the enroachee’s property, the encroachee may find it worth the time, effort, money, and stress to legally force the encroacher to rectify the encroachment.

In many cases, the encroachment is so negligible that it is not worth the agony of court proceedings to remedy the situation.  Many enroachees will find it more satisfactory, in the end, to simply issue an easement to the encroacher, which gives the encroacher permission to use that small bit of land.  A surveyor can be brought out to survey the enroachment, create a legal description of it, and the title/escrow company can write up the easement, have both parties sign it, and file it with the county recorder.  An easement of this nature will typically be limited to just the specific area of the encroachment, and will have wording to the effect that the enroacher cannot further enroach, and that if the building is destroyed, that it cannot be re-built back over the property line.

But don’t take my word for it!  I advise you to consult a qualified real estate attorney to discuss your options if you have an encroachment situation with your property!  Caveat emptor.  🙂

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Seb Frey helps long-time Bay Area homeowners make their next move easily the next one yet. If you're looking for a minimum of hassle, maximum net cash on sale, and certain results, contact Seb today.