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Encroachment

DEFINITION

Term used to describe unlawful intrusion or use of another land owners adjacent property.

EXPLANATION

Encroachment refers to property boundaries between neighbors being broken. A common example of this is a property owner’s boundary line being encroached with a neighbor’s fence. In this example, if the violating party does not remove the fence the violated party can take the neighbor to court to reestablish boundary lines. A violation of one’s airspace can also be an encroachment.

A common example relating to air space can be a neighbor’s roof encroaching on the property of his or her neighbor. A party that meets the conditions of the easement by prescription or adverse possession may get the legal right to use the land. If the conditions are not met, the neighbor can begin a lawsuit.

Common items that may encroach a neighboring property include a tree, fence, gate, fixture, bush, and other related items.

Encroachment is technically a violation by one landowner of the other landowner’s property.

***Directions*** Place picture found on p.143 of principles book

Determining Whether Something is Considered an Encroachment

Court Decisions are Based on:

Extent of encroachment (one-inch versus 10 feet over)

Difficulty of removing item which is encroaching (flower verse roof)

Whether encroacher acted with intent or made an honest mistake

Example

Buyer Maries discovers that her property lines are being violated by the next door neighbor. Trees, plants, and bushes have encroached onto her property from her next door neighbor, preventing her from conducting landscaping on her property. What can Marie do?

Marie has the right to request her neighbor remove the trees, plants, and bushes that encroach her property. If the neighbor does not remove the items that are encroaching the property, Marie could file a lawsuit for damages or forcible removal of the items.

Example

Eric discovers that he owns a larger portion of land that he originally believed. After going to county recorder’s office, Eric realizes that his neighbor is using a portion of his property as the neighbor’s house is almost 2 feet into Eric’s property. Eric brings legal suit against his neighbor to forcibly remove the property. Can Eric do this?

Although Eric has the right to bring his neighbor to court to answer for his violations, the court will not force Eric’s neighbor to remove the house. Such a task is a large imposition and a significant financial burden, one which is not reasonable. The court however may reward minimal monetary damages against the violating landowner. Because property lines are sometimes difficult to fully comprehend until a surveyor reviews the house, there may be instances where encroachment violation will not result in any punishment to the violating party.

Encroachment in Detail

An encroachment is when a property owner builds a structure that encroaches upon the property of a neighbor, or goes beyond his or her property’s legal boundary.

The penalty for encroachment varies based on the damages and whether or not a violating party was aware of the encroachment and/or the boundary lines.

When a violated party first becomes aware of an encroachment, her or she must immediately inform the authorities and file a lawsuit. If a violated property owner knows of an encroachment and does nothing to stop it until it is complete, however, the courts may side with the violating party. This includes a situation in which a neighbor openly and notoriously builds on a property owner’s land without action from the property owner. This may result in a justified adverse possession claim.

If an encroachment is deemed to have been intentional, the court will always side with the violated party. The courts will consider the degree of damage versus the value of the property when determining damages. The violating party may be required to pay for the removal of the encroachment and any damages sustained to the violated party’s property.

The violated party must follow the proper legal steps to see to an encroachment’s removal, however. Unlawful removal of an encroachment may result in a countersuit from the violating party.

If an encroachment is deemed to have been unintentional, and of great cost to the violating party, a court may order that the structure remain. If the violating party wishes to sell his or her property in the future, however, potential buyers must be informed that the encroachment exists.

Legal Cases As it Pertains to Encroachment

Case Review: Raab v. Casper (1975)

The case, Raab v. Casper (1975) 51 Cal.3d 866., involved an encroachment dispute between neighbors.

A property owner (Raab) shared a property border with a neighbor (Casper). Casper started constructing a cabin that violated the boundary line. Raab alerted Casper to this fact, but Casper continued building to completion. Raab sued.

The Superior Court argued that Casper’s construction activities were in good faith, and that he did not act maliciously or willfully in the building of his cabin. It ruled in favor of Casper. Raab appealed. The Court of Appeals argued that the lower court had failed to try Casper for negligence, and had not accurately considered the easement right that Raab had lost as a result of Casper’s illegal construction of the cabin. It claimed that Casper’s failure to stop construction activities after proper warnings by Raab meant he had not acted in good faith. The appellate court reversed the lower court’s ruling and ruled in favor of Raab.

Case Review: Hirshfield v. Schwartz (2001)

The case, Hirshfield v. Schwartz (2001) 91 Cal.4th 749., involved a boundary line dispute.

A property owner (Hirshfield) shared a border with a neighbor (Schwartz). Both neighbors assumed that the chain link fence put in by the previous owners was the boundary line. Schwartz made several improvements to his backyard that encroached onto Hirschfield’s property. The encroaching items included waterfalls, a koi pond, a stone deck, and a putting green.

Hirshfield hired a surveyor, who revealed that Schwartz was violating boundary lines by encroaching onto Hirshfield’s property. Hirshfield subsequently sued Schwartz for declaratory relief, action to quiet title, and trespassing in order to have the encroachment removed.

The Superior Court reasoned that the removal of the encroaching items provided minimal benefit to Hirshfield, but an undue burden on Schwartz. Therefore, it ruled in favor of Schwartz. Hirshfield appealed. The Court of Appeals upheld the lower court’s ruling. It argued that because Hirshfield had not originally been aware of the boundaries, Schwartz had a right to the encroachment. The court ordered Schwartz to pay the market value for the loss due to the encroachment. Hirshfield’s other requests were denied.

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