Every homebuyer and homeowner should be aware if there are encroachments on their property or, a potential property you will purchase. An encroachment in real estate is if a neighbor accesses your land for their benefit without your permission.
While most property encroachments are minor, some are not and can significantly affect the value of your home or impact your ability to get a mortgage.
At the very least, an encroachment can be a significant nuisance.
Simply put, encroachment is when one property owner violates the property rights of another.
This can include one unlawfully accessing land or building, adding a structure, or extending structures onto their neighbor’s land without permission.
Encroachment is basically where an unauthorized user accesses or takes advantage of the benefit of your land for their own use.
More often than not, encroachments are unintentional and caused by others not knowing where a property boundaries exist with certainty.
An encroachment of land can run either way. You, yourself, can be creating an encroachment on either a neighbor’s land or city property, or, your neighbor can be the violating
Anytime someone accesses your land for their own use, you are being encroached upon.
There are two types of encroachment when it comes to real estate.
Minor encroachments are when the encroachment has not significant impact in value of a property. A garden or fence extending a few inches past a property line would be a minor encroachment.
A minor encroachment can usually be a simple resolve by communicating with each other.
A major encroachment is one that can have a more serious financial impact. It can be a permanent structure built on your land or a branch overhanging your house, creating a liability.
Major encroachments will have to often be resolved by legal action and a court decision, especially when parties are not in agreement.
When buying a home, it is important to know about any encroachments on the property. Without knowing the exact boundaries through identifying boundary markers in conjunction with a survey, it may not always be obvious.
A large tree limb overhanging a roof that is on the abutting property is a clear that is encroaching on your property.
But there may be other things that encroach on a property that may not be so obvious like landscaping, fences etc…
Trying to get a rough look on Google Maps, a previous Mortgage Plot Plan or GIS Assessor Maps may indicate the property lines and if it is being encroached upon.
There are several reasons that an encroachment can be a problem for you as a homebuyer.
Marketable title means the home is free from any title defects that may pose litigation in the future and is free from all encumbrances.
If there is an encroachment on your property that is not resolved, it can affect your title to the home. Meaning, the bank will not finance the property.
Unfortunately, even if someone is on your property uninvited, if they get injured they could bring a lawsuit against you for damages.
A home and land that you purchase that have been encroached upon can lead to a future liability for you.
Encroachments can affect the value of a home by reducing the size of the lot or by changing the character of the property.
If you are purchasing a property that has been encroached upon, it is important to be aware of any encroachments and how they could affect your purchase and future value.
If you know about any encroachments prior to a purchase, it will be in your best interest to work with the seller to rectify the problem. It could be a matter of a shed being moved, a walkway being moved etc…
As property changes hands, a minor encroachment issue can become litigious with every new owner.
When you buy a new home, you don’t want the hassle in the future dealing with an unreasonable neighbor.
Land that has been encroached upon for many years without a formal legal agreement or acknowledgement can be subject to adverse possession.
Adverse possession is where someone has open, uninterrupted use of the land that goes uncontested. After a period of time, they can claim the land as their own.
While rare, it is still a distinct possibility
If you have not purchased the home yet, try to get the seller to fix the problem before taking possession. If that is not possible, talk to your attorney to see what impact the encroachment may have in the future.
It is easy to confuse encroachments with easements. Both can become an encumbrance for the property. Meaning, they can affect value.
Both are a matter of someone using your land. An encroachment is unauthorized use where an easement is authorized and memorialized with legal documentation.
A right of way is a type of easement, for example, the use of your land for a neighbor or the public to cross the property to access a lake. But a right of way, if properly done, is recorded on both deeds of the both the owner of the land and the abutter who has the right of way.
If you find yourself the victim of an encroachment, the first step is to document the situation. You can do this with a sketch or photo documenting where the encroachment occurred and what was affected.
First, reach out to your neighbor and see if by simply communicating with them if the issue can be resolved. Often the offender does not even know that what they did was an issue, and they will be likely to want to rectify the situation.
If that fails, you can reach out to a land surveying company to get a legal opinion on the encroachment and how to rectify it.
If all else fails, then you may need to take legal action.
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Encroachments In Real Estate: What You Need To Know is provided by Kevin Vitali of EXIT Realty. Are you thinking of selling your home? Call Kevin at 978-360-0422.
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