Real Estate Investing Basics

Neighborly Disputes: How to Handle Property Line Issues

Expertise: Business Management, Personal Finance
43 Articles Written
View of feet of guy in white socks and sneakers standing near grunge white line on asphalted road, ready to pass

Encroachment describes any situation where one person is using or building on another person’s property. Generally, such disputes occur over neighboring properties where exact property lines may not be clearly defined or easily visible.

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On its face, encroachment isn’t a particularly tough concept for smart investors to grasp. The basic legal definition is fairly straightforward.

Now that said, encroachment in reality is far more complex than this basic definition. Here’s what you, the savvy BiggerPockets-reading real estate investor, need to know.

What Does Encroachment Look Like in Real Life?

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

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

Related: Crime Proof Your Properties: Lessons from a Gang Threat

fence with metal grid in background

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

  • Someone building directly on your property.
  • Someone building a structure that extends onto your property.
  • Someone routinely trespassing on property, whether for a particular purpose or not.
  • Someone 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 specific 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, and it is 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 be a solution to a potential encroachment, if appropriate.

What Can I Do About Encroachment on My Property?

You have options for handling encroachment situations. They need not all end in bitter litigation.

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

Related: 10 Rental Property Red Flags You Should Never Ignore

Aerial view of the big luxury homes on the hill during a vibrant sunny summer day.

Below are potential solutions to encroachment. Please note that these are just some possible actions you can take. Which are best for you is a subject to discuss with an attorney you trust.

Ways to handle encroachment:

  1. Define your property line with a formal survey. This course of action allows you to establish that you are making a good faith effort to ensure you really are dealing with encroachment.
  2. Negotiate, if you feel the other party is amicable. People can be much more reasonable than we give them credit for. It may be helpful to actually look at the situation from the other party’s perspective and determine if there’s a compromise 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 desirable location. But before you do anything like that…
  3. Get at least one professional opinion.  A proper expert can not only help you negotiate this situation but also assist with any blind spots you may have missed. If you can bounce your plan off of a fellow investor and an attorney, you’ll be in a better position than the investor who did neither.

Bottom Line: Get a Real Estate Lawyer’s Help

Now, I certainly hope you’re reading this for purely educational purposes as a continued part of your personal enrichment as an investor. But if this subject is a little closer to home for you, don’t shy away from getting some help.

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

There is no substitute for legal counsel, particularly not this article. But if you’re free of this worry, that’s great. 

hard-money-lenders

Do you have any other questions about encroachment? Are you currently dealing with an encroachment-related situation? 

Let me know in the comment section below.

 

Scott Royal Smith is a real estate asset protection attorney based in Austin, TX. His firm, Royal Legal Solutions, designs asset protection strategies exclusively for real estate investors. As an investor himself, Scott is sensitive to the needs of real estate investors; as an attorney, he maintains a working knowledge of the best legal strategies available for preventing lawsuits. Connect with Scott here on BiggerPockets or visit his website, www.royallegalsolutions.com, for more information about asset protection for real estate investors. Check out all of Scott’s previous work for BiggerPockets here.

    Christopher Smith Investor from brentwood, california
    Replied 4 months ago
    Reminds me of an episode of “Fear Thy Neighbor”
    Huiping Sheng Real Estate Agent and RE investor from Tampa, Florida
    Replied 4 months ago
    Saw a property’s fence and one storage room on the middle of next door’s driveway and weird looking of the fence: snake shape. Legal documents show this: 13 years ago, parents gave two property to son and daughter for each. 10 years ago, son’s family sued daughter’s family and judge ordered this daughter’s family removed the fence and storage to give 20 yrs easement for the son can drive to the street from his home. Just this fact is enough to stay away from this daughter’s family and the property…
    Bernie Neyer Investor from Chanute, Kansas
    Replied 4 months ago
    We have an issue with the neighboring tenant to our small apartment complex. The tenant actually enclosed their patio to our fence, shedding the roof so that it would drain on our property, accept for guttering that is over the top of our fence, with the downspout draining on their side of the fence. When we contacted the owner, they didn’t care and actually threatened to litigate us over the issue, if we replaced the fence, which is what precipitated the issue. Their duplexes are D grade, if that and improving our property would make his look worse. Not wanting to start a war with them, we haven’t proceeded with replacing that section of the fence. What the article didn’t cover was building encroachment. Most cities, and it may depend on the development, have set backs from the adjacent property. To build within that set back requires a variance from the neighbor. Now here is the kicker, if you don’t enforce your property, including the set backs, you could be seen as granting an easement for the building within that set back.
    Sharon Rosendahl Investor from Stanwood, Washington
    Replied 4 months ago
    We have a neighbor who claims we have encroached on his property, in fact, claims that previous owner of our property did prior to the neighbor owning the house. I could have given him a lecture on the fact that this would be open and hostile use for over 25 years (there is a small building on this part of the property). Instead, we offered to split the cost of a surveyor to come and stake it. The agreement was that we would each select a surveyor and get a quote then would discuss the options. We had a surveyor come out to estimate the cost. While he was there he looked at the surveyor stake placed by a very prominent surveyor and agreed that it was impossible for the property line to be where the neighbor says. He said he would call the neighbor and explain how his septic drawing just wasn’t as clear as our certified plat map that was sealed by whatever agency and filed with the county. Also explained that those pins don’t just walk around. I think our other neighbor who was present when the prior survey was done also explained to the neighbor that that survey didn’t indicate we were on his property. LOL, guy never brought his survey estimate over and hasn’t mentioned this for over a year. We could have been jerks but decided we would just settle it this way and the neighbor may be unhappy but I think he has figured out he was really in the the wrong. Issues need to be cleared up in a timely matter. My sister’s house was built over the property line about 40 years ago (by the original owner, not her). A few years ago someone bought the lot on that side and proceeded with a law suit. My sister won because they openly used that property for over 40 years and so this caused the lot line to be moved to include their fence ( I think the original owner put that fence in shortly after they built, this house is on the same street I grew up on). The court ordered the other guy to give them title to about 10 feet so that this won’t come up again.
    Scott Smith Attorney from Austin, TX
    Replied 4 months ago
    I do believe that one thing people need to remember in these disputes is that ultimately you are dealing with your neighbor, so the ultimate goal is to aim for a win-win scenario. Unfortunately it can be very difficult when it comes to “boundaries” when dealing with neighbors. Great idea to participate in matching quotes for the solution!