Encroachment Definition: What It Means In Real Estate

Encroachment has become synonymous with illicit activity. The very act of encroaching on someone else’s land, for example, suggests a direct violation of property rights. However, it is worth noting that the ramifications of encroachment real estate intrusions extend beyond the rights of individual homeowners. Encroachments can drastically impact everything from home sales to mortgage qualifications. As a result, it’s in everyone’s best interest to not only learn what encroachment real estate practices are but how to navigate them in the chance they arise.

What Is Encroachment In Real Estate?

Encroachment is the act of either building a new structure or extending an existing structure onto somebody else’s property without their consent. In its simplest form, encroachment is often the result of ignorance or the inability to delineate property lines clearly. Encroachments often occur when a neighbor puts up a new fence or builds out a new deck without consulting property lines. If any part of a structure crosses onto an adjacent piece of land without the other owner’s consent, the person responsible for the encroachment may be held liable. More specifically, however, encroachment is a violation of property rights on behalf of the encroaching party. Any attempt (intentionally or unintentionally) to build on someone else’s land infringes on the rights of the respective owner and is—therefore—not considered legal.

Understanding Encroachments

On the surface, the term “encroachment” is relatively simple. Akin to trespassing, encroachment real estate practices will witness offenders build or extend existing structures on another person’s grounds without their express permission. Not surprisingly, encroachment often leads to a violation of property rights. Still, there are more intricacies to encroachment than meets the eye. In particular, the ramifications of encroachment can extend far beyond neighbors exchanging pleasantries or even litigation.

Outside of the obvious inconveniences and infringements on property rights, encroachment real estate practices can undermine mortgage applications and influence property values. If for nothing else, encroachment can dramatically impact the outcome of land surveys, appraisals and inspections. If, for example, an appraisal includes a detached structure that doesn’t belong, it may inaccurately assess the property.

With the ability to alter outcomes of such valuable assessments, encroachment can play an important role in determining property values, lines, and boundaries. As a result, buyers, sellers, and even investors must familiarize themselves with the intricacies of encroachment real estate infringements.

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Property encroachment

Encroachment Issues When Buying A Home

Encroachment real estate intrusions aren’t all created equal. While some encroachments can go as far as preventing someone from getting a home loan or changing the value of a property, others may be negligible and easy to ignore. Regardless of how big or small a respective encroachment may feel, it’s important to take each one seriously. At the very least, even something small can turn into a bigger problem given the right catalysts.

One of the biggest issues associated with property encroachment is liability. Consequently, homeowners may be held liable for an injury or significant damage resulting from the encroaching structure. Regardless of who built the structure or even each owner’s own sentiment, the owner of the land the structure is on may be held liable for any accidents that transpire.

In addition to liability, property encroachments can hurt the resale value of a home. If for nothing else, buying a house with an encroachment may be viewed as a red flag, or it may suggest there are hidden costs that need to be accounted for. At the very least, encroachments don’t often help resale value. If, for example, the encroaching structure isn’t permitted or needs to be torn down, the impending buyers may be less-than-willing to pay the full asking price.

Again, not all encroachments may seem terrible at first. However, their mere existence can cause several complications down the road. Homeowners with encroachments should do everything they can to eliminate any existing intrusions and prevent them in the future.

Types Of Encroachments

There is more than one way to encroach on an adjacent property. To avoid confusions and create a clear, definitive legal precedent, two types of encroachments have been created to acknowledge a wider range of scenarios (both of which include major and minor infractions):

  1. Trespass: As its name suggests, the trespass variant of encroachment involves the physical intrusion onto someone else’s land with an unwanted structure. As previously discussed, a fence that crosses property lines without the owner’s consent may be considered a type of trespassing encroachment. That said, it’s not the type of structure that classifies trespassing encroachment; it’s the physical act of building or extending a structure directly onto the land of the subsequent owner.

  2. Nuisance: Whereas trespass encroachments detail physical structures which are built directly into the ground of adjacent properties, nuisance encroachments deal with the airspace located directly above the land. More specifically, anything that occupies the airspace of an adjacent property may be considered a nuisance encroachment. For example, any tree branches that extend from one property line to another (even though they aren’t technically touching the other property) may be considered a nuisance.

Encroachment Vs. Easement

It is not hard to see why the encroachment vs. easement debate may lead to confusion. After all, the two concepts are very similar. However, despite their similarities, there’s one key difference to account for: consent.

Encroachment

As previously discussed, an encroachment is the building or extension of an existing structure on an adjacent property owned entirely by someone else. Nonetheless, the defining characteristic of encroachment real estate infringements is using someone else’s property without their consent. Any attempt to build on someone else’s land without their express permission is illegal.

Easement

Not unlike encroachment, easements center around the idea of building a structure on someone else’s land. However, instead of encroaching (building without permission), an easement is a legal agreement that enables the structure to be built. An easement gives someone the right to access a portion of the subject property. Essentially, easements are the same thing as encroachments—only with permission.

What Can You Do About An Encroachment?

Encroachment real estate infringements can cause a lot of problems for homeowners and prospective buyers. However, the existence of an encroachment isn’t the end of the world; there are plenty of things that can be done to elevate the situation:

  • Talk To The Neighbor

  • Sell The Land

  • Settle The Dispute In Court

Summary

Encroachment real estate intrusions can run the gamut of severity. On the one hand, one neighbor may encroach on another’s land with something as common as an overgrown tree branch. On the other hand, serious encroachments may lead to neighborhood disputes and litigation. Regardless of the severity, however, it is good practice to take care of an encroachment as soon as the violation occurs; that way, it can’t turn into anything more.


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