Hey, Back Off! When an Encroaching Neighbor Wants a Piece of Your Property

So, the folks next door did some landscaping. And you’re pretty sure it crossed your property line. Maybe they built a shed over the boundary. Maybe they’re using a part of your land to park equipment, or to drive over.

In some cases, the encroachment isn’t obvious. Then the deed holder wants to build a cottage or a deck, has a survey done, and the issue surfaces. Or maybe it is obvious. So the deed holder seeks a real estate lawyer for research and advocacy, as pricey survey work seems unnecessary.  

In any case, the encroachment is real. To begin a resolution…

Be Generous

Maybe you don’t mind the encroachment, as long as there’s mutual respect. Options are:

• Modify the property boundary by mutual consent. The law on property lines varies by state, and a lawyer who’s admitted to your state’s Bar can best advise you.

• Make a deal. If the neighbor can’t be pried away from that all-important part of your property, perhaps they’d be willing to buy that section of your land. Not only do you want the fair market value, but you also want the neighbor to cover the appraisal, survey, and attorney’s work you’ll need to sell the land and draw up new deeds.

• Have your local real estate lawyer draw up a permission letter or an easement. This could be the best compromise for all concerned. You’re not saying “keep out!” Yet the neighbor has formally acknowledged your ownership.

Make your agreement formal. When you’re on record as affirmatively allowing legal access, the neighbor can’t try to stake a claim to the area by using it for years and claiming an interest by adverse possession.

Often, lawsuits settle out of court. This typically means a compromise where the encroacher pays for the land and covers the property taxes at issue.

Granted, lawyering up against someone you run into all the time is awkward at best. To maintain a good relationship, you might point out that everything needs to be done officially for the sake of future deed holders of the area in question. Documentation simply amounts to good planning.

Now, what if the encroacher refuses to sign any type of formal agreement, yet continues to insist on access?

In that case…

Be Protective

Is the neighbor engaged in a flat-out attempt to usurp your land? Do the neighbor’s actions or words suggest such an expectation? Time to warn your pushy neighbor to move off. You might decide to put up a row of hedges or fencing. (Check your local ordinances; they could, for example, forbid your neighbor from damaging trees.)

But avoid moving the neighbor’s items without first obtaining the advice of a lawyer. A lawyer often begins by writing a “cease and desist” letter with a deadline.

Some disputes can’t be settled, even if both sides are trying. That’s when a court can step in, examine the situation, state laws, and local rules, and hash out an order that everyone must follow, now and in the future. In some cases, legal action is the only way to recover the money you spend on property restoration.

Remember to contact your title company and your mortgage lender first. Find out whether title insurance policies from either source can help you pay the cost of a legal action.

Got a deed to a condo unit? Encroachment is rarely an issue when you own only what’s within “the four walls.” When disputes arise, turn to the condo association’s governing documents for relevant rules that may apply to unit owners, management, and the board. If necessary, consult a lawyer experienced in condo law.

Be Compliant

You might start by reviewing the legal description of your property, spelled out on your deed. Check the current version of all documents to know your lot’s exact measurements.

Working things out amicably might involve putting a barrier up along the boundary line so there are no further misunderstandings. Do your local zoning rules permit its installation?

If you’re thinking of installing fencing to benefit both deed holders, check with your township for the form to make a fence line agreement that you can maintain jointly. You’ll need to submit an up-to-date property survey report as an enclosure with your form. The fence must match the borderline in the current survey. It must meet local construction standards.

Check your local rules for having your submissions notarized and filed with your home county’s recorder of deeds. The recorder of deeds establishes a public notice of every significant agreement affecting your ownership rights.

But wait… What if you’re not in agreement? Do you still have reason to think your neighbor is overstepping boundaries or placing things over established setbacks?

To be sure, contact your code enforcement department. Especially as setbacks prevent stormwater runoff issues for local governments, officials may step in on your behalf.

If your neighbor is dumping or storing anything hazardous on your property, don’t just let it go. Don’t let your inaction turn you  into the one who’s out of compliance. Your state’s environmental conservation department can inspect a hazard. If your neighbor’s activities are contaminating the ground, penalties are serious.

Be Knowledgeable

Imagine that the people next door claim their land survey proves they are not encroaching. Are the people next door misreading the survey?

Or could you have mismatched surveys? If not, who is wrong about the boundaries?

This mystery must be solved. And solving it starts with a trip to the file cabinet containing your deed and other real estate documents. Go through that paperwork to find your property survey. That document will indicate who must back off.

Now, if you opted at closing to pay a one-time premium and receive a policy for owner’s title insurance, find that paperwork. If you got the standard policy, and something was installed over your property line before your closing, then your policy (or the surveyor’s) might cover the costs of resolving an encroachment problem.

The possibility of boundary line fiascos can prompt people to buy enhanced title insurance policies. Enhanced (also called extended) policies cover issues arising during the course of ownership — not just what was already there on closing day.

If the title insurance does cover borderline issues, the policy holder may file a claim on the policy.

Be Diligent

Encroachment laws vary by state, and apply differently for each specific dispute. Running into these matters teaches us a lot about our deeds and surveys — sometimes more than we ever wanted to know!

But it’s important to address them head-on. Title issues just get worse if people improve or keep using disputed land.

Finally, a reminder that this article is not a substitute for legal advice. A real estate lawyer in your state can guide you in protecting your and your heirs’ interests.

Learn more about the title represented by your home’s deed. Deeds.com can support your title research efforts.