Encroachment in Real Estate: Handling Disputes With Neighbors

As a property owner, you’ll likely have neighbors who own property near you. And while friendly neighbors can make an area enjoyable, they can also be a source of frustration for many residential and commercial property owners.

One common frustration between neighbors is encroachment in real estate, when someone uses or builds on someone else’s land. On its face, encroachment isn’t a particularly tough concept for smart investors to grasp, but it’s far more complex.

Here’s what you, the savvy BiggerPockets-reading real estate investor, need to know.

What Is Property Encroachment?

Property encroachment is when someone builds or extends a structure over their property line onto their neighbor’s land, violating the neighbor’s property rights. Generally, such disputes occur over neighboring properties where exact property lines are not clearly defined or easily visible.

Encroachment can be intentional or unintentional but is still a nuisance and an infringement on someone else’s property.

What Does Encroachment Look Like in Real Life?

Encroachment disputes are almost as old as human civilization. For as long as we’ve had concepts of “my land” and “your land” (or even “public property” vs. “private property”), property owners have had disputes around such distinctions.

Fortunately, you don’t have to defend your private property rights by brute force with a small army. But it’s helpful to understand that encroachment can manifest itself in a few ways.

Here are some common examples of encroachment issues you may encounter:

Someone is building directly on your property.
Someone is building a structure that extends onto your property.
Someone is routinely trespassing on the property, whether for a particular purpose or not.
Someone is abusing a valid easement. Easements are legal means of allowing another person access to your land, assuming they are progressing to another structure. Homeowners with, for example, public beachfront property may have easements that allow neighbors or even the general public the right to use a certain area for traveling to and from the beach. The point is there’s a reason the person is on the property boundaries, generally for a short period.

It shouldn’t take much imagination to see how a person abusing their simple access to an easement can make a homeowner’s life difficult. Encroachments and easements are not the same. By definition, the former isn’t agreed upon. And yes, an easement may even solve a potential encroachment if appropriate.

What Can I Do About Encroachment on My Property?

As a property owner, you have options for handling encroachment situations. They need not all end in bitter litigation.

While there are cases where it may be wise to avail oneself through legal remedies, de-escalating the conflict is often a more direct means of solving the underlying problem.

Below are potential solutions to try if another property owner violates your boundaries. Please note that these are just a few options to get you started. Discuss these steps with an attorney you trust.

If you attempt any of these actions, document the event with photos, video, receipts, or a conversation record, which could be helpful if you need evidence in court.

Establish property lines with a formal survey

This course of action allows you to establish that you are making a good-faith effort to ensure you are dealing with encroachment issues. If you cannot determine the property lines from the deed or find accurate land survey records, contact a land surveyor specializing in measuring the land’s legal boundaries. This professional will conduct a property survey and help you determine between your and your neighbor’s land so you can see if your concern is truly encroachment.

Negotiate if you feel the other party is amicable

Talk to your neighbor about the situation and see if you can have the situation resolved amicably. It’s helpful to go into the conversation assuming good intent since your neighbor may be unaware they are infringing on your property. This may solve the problem easier and faster than any serious legal action, especially if the issue is a minor encroachment, such as an overextending tree branch or an overgrown hedge in your yard.

Negotiation may be necessary if the situation is a bit more complicated. People can be much more reasonable than we give them credit for. Consider if there is a fair agreement you can live with. If, for instance, your property is between a popular destination and a neighbor’s property, you may have the legal right to work it out between yourselves and even make a profit off of your property with an easement agreement.

Get at least one professional opinion

When in doubt, get a third party’s opinion. A proper expert can help you negotiate this situation and assist with any blind spots you may have missed. If you can bounce your plan off of a fellow investor, mortgage lender, or a local real estate attorney, you’ll be in a better position than the property owner who didn’t consult anyone.

What if My Neighbor Is Still Encroaching on My Property?

If you’ve tried any of these steps without success, it can be frustrating. Moreover, property encroachments can harm property value if you want to sell in the future.

Contacting a real estate attorney is the next best course of action. A legal professional can help begin any legal action, such as preparing for court or drawing up terms for an easement agreement where your neighbor pays to use a portion of your land.

Although tempting, avoid removing the encroaching structure and crossing property lines yourself. This will escalate the encroachment issue and could backfire against you later if you decide to begin legal action. Continue documenting the course of events and the status of the encroachment, and leave the rest into your lawyer’s hands.

Bottom Line: Get a Real Estate Lawyer’s Help

I hope you’re reading this for purely educational purposes as a continued part of your personal enrichment as a property owner. But if this subject is a little closer to home for you, don’t hesitate to get help from a real estate attorney.

Whether you’re being accused of encroachment by a neighboring property or believe your land has been encroached on by another property owner, neither of these positions is a time to try to play the part of your own counsel. Major real estate disputes (especially threats of legal action) are compelling reasons to get a qualified real estate attorney’s opinion of your circumstances and advice on what to do next.

There is no substitute for legal counsel, particularly not this article. Consult a legal expert to protect yourself and your property from encroachment issues.

Note By BiggerPockets: These are opinions written by the author and do not necessarily represent the opinions of BiggerPockets.