• How Opendoor works
  • Browse homes
Sign in

What is encroachment in real estate?

Reading Time — 6 minutes

By Jean Folger

Reading Time — 6 minutes

Summary

Key Takeaways

  • Encroachment can occur when a building, fence, hedge, or other feature illegally intrudes onto or over an adjoining neighbor's property.  

  • Encroachments can be intentional or unintentional and are usually discovered during a property inspection or survey.

  • One solution may include an easement, which is a limited right to use someone else's property for a specific purpose.

  • Options for resolving encroachment issues include talking with the neighbor, selling them an easement or small piece of land, or taking them to court.

  • It's usually best to deal with encroachment right away to avoid title problems, potential liability, and other issues down the road. 

Even if you love your new house, you could have a complicated relationship with one of your neighbors. A common source of tension is encroachment — when something on your neighbor’s property builds or extends onto your property without your permission. Encroachment can be unintentional or intentional. And it can range from minor issues like an overgrown hedge to bigger problems like a garage crossing into your property.   

While there are several ways to deal with encroachment — some more amicable than others — it's always better to resolve issues sooner rather than later to avoid problems down the road. 

Encroachment definition

Encroachment happens when a neighboring property builds or extends something that intrudes onto or over another owner's property without permission.   

What that actually means 

You've probably heard the word encroachment if you're a football fan. It happens when a defensive player enters the neutral zone and contacts an offensive player (or the ball) before the snap. 

 Encroachment in real estate can be viewed similarly; essentially it means something is where it shouldn't be. If your neighbor builds, extends, or plants something that crosses onto or over your property, it's usually encroachment. For example, part of your neighbor's garage or fence could cross onto your property. Or, a roof or tree branch might extend over your property. Whether the intrusion is on, above, or under the land, it may be encroachment if it ends up on your property.

 Sometimes encroachment is deliberate, such as when a neighbor builds part of a fence on land they know is yours. Other times, encroachment is unintentional, especially if there's uncertainty about who owns what or if vegetation grows past a property line.

 The best defense against encroachment is to know where your property starts and ends. A professional land survey — which maps out the land's shape and boundaries — can verify your property lines, confirm if a neighbor is encroaching, and help you avoid encroaching on them. It can be a good idea to get a survey before heading to the closing table (mortgage lenders generally require one), and you can request another anytime.

Encroachment vs. easement: What's the difference?

In real estate, an encumbrance is anything — such as a mortgage, tax lien, or land use restriction — that can diminish the value, use, and enjoyment of the property. While encroachments and easements are encumbrances (and the terms are easily confused), they're not the same.

An easement is the right to use someone else's property for a specific purpose that both parties agree to. For instance, you might have an easement to use your neighbor's land to access a nearby lake or beach. While an easement provides a right to use the property, it doesn't convey any ownership rights.

 On the other hand, encroachment is the unauthorized use of a neighbor's property — something both parties have not agreed to — such as when your neighbor erects a fence on your land without your consent.

But here's where the encroachment vs. easement line gets a bit blurry: An encroachment issue may eventually turn into a type of easement called a prescriptive easement. This happens when an encroacher openly uses someone else's land for a certain number of years (which varies by state), and may gain a legal right to use the property. The best way to avoid this situation is to deal with encroachment issues as soon as possible.

Resolving property encroachments 

Unlike in football, there's no standard solution when it comes to real estate encroachments. Still, there are a few options if you find yourself involved in a property dispute:

  • Talk with your neighbor. Minor encroachment issues can often be resolved amicably with a friendly conversation. Share your concerns with your neighbor to see if they're willing to move the fence, trim the hedge, or remove the dangerous branch.

  • Sell an easement — or some land — to your neighbor. If the encroachment isn't easy to fix, you can sell an easement to your neighbor, giving them a legal right to use the property for a specific purpose. Alternatively, you could sell the affected piece of land to your neighbor, giving them ownership rights. If you decide to go this route, check with your mortgage lender first. Your property is collateral, so your lender must agree to the sale.

  • Take your neighbor to court. If your neighbor isn't amenable to the first two options, you can take them to court. Be prepared for what could be a slow, expensive process that might worsen tensions. Also, keep in mind that the court won't necessarily decide in your favor. It could find that your neighbor's encroachment is legitimate or constitutes a prescriptive easement. However, your neighbor will have to remove the feature in question if the court rules in your favor.

What if I don't resolve a property encroachment?

While encroachment might seem harmless, it can lead to serious complications down the road.

For starters, encroachment can create title issues when you eventually sell the home. Most real estate transactions require a survey, which will note any encroachments. This could be a deal breaker to potential buyers who don't want to get involved in a land dispute — or who aren't willing to overlook an encroachment that didn't bother you.

There's also the potential for liability issues. Suppose a neighbor's tree hangs over your property and, through no fault or negligence of the neighbor, it falls in a storm, damaging a car parked in your driveway — or worse, injuring someone. In most states, the liability would be yours, even though the tree belongs to your neighbor. 

 Finally, if you ignore an encroachment issue, your neighbor could eventually have a legal right to use the property through prescriptive easement. This can lower your property value and scare off potential buyers if you decide to sell. 

Wrapping up

Minor encroachment issues can grow into big problems, especially if you decide to sell your home. To minimize your risk of encroachment troubles, get a professional survey before buying a new property or anytime you're unsure about property lines. Minor problems can often be resolved with a friendly conversation. Larger issues might require negotiation, the sale of an easement or small piece of land, or litigation. 

 Consult a qualified real estate attorney if you need help with an encroachment issue.

This content is meant for informational purposes only and is not intended to be construed as financial, tax, legal, or insurance advice. Opendoor always encourages you to reach out to an advisor regarding your own situation.