ABA Family Legal Guide

Home Ownership

Property Rights and Restrictions

Handling Property Constraints

What is an encroachment?

An encroachment occurs when your neighbor's house, garage, swimming pool, or other permanent fixture stands partially on your property or hangs over it.

In the case of a neighbor's roof overhanging your property, or a fence being two feet on your side of the line, your rights might be tied to the prominence of the encroachment and how long it's been in place. If it was open, visible, and permanent when you bought your home, you may have taken your property subject to that encroachment. The neighbor may have an implied easement on your property to continue using it in that manner. If the encroachment is less obvious, you may only discover it when you have a survey conducted for some other purpose. In that case, you might have a better chance of removing the encroachment.

A house addition could create an encroachment if it starts twenty-three feet back from the sidewalk and the local setback ordinance requires twenty-five feet. The neighbors could band together and sue you, hoping you would be forced to raze your addition. Or you might have to live with your neighbors' disapproval, perhaps after paying a fine to the city for the violation.

It's even possible to encroach on an easement--for example, by locating the apron of your swimming pool on the telephone company's easement across your property for underground cables. In that case, the company would have a right to dig up the concrete and charge you for it. If you plant bushes on the easement, the company could dig them up and not have to replace them.