ABA Family Legal Guide

Home Ownership

Property Rights and Restrictions

Handling Property Constraints

What can you do about an encroachment?

First, you could demand that the neighbors remove the encroachment. If they refuse, you could file a quiet title lawsuit or ejectment lawsuit and obtain a court order. In a quiet title lawsuit, you would ask a judge declare your title to the property, and clear the property of any other interests or claims. You could seek similar orders in an ejectment action, which is a legal action you can bring to determine who has superior title to the property.

Of course, this isn't the best course if you wish to maintain neighborly feelings, especially if the fixture in question is merely the cornice of your neighbor's house. Further, if prior owners of the neighboring property have used that bit of your land for quite a few years, your current neighbor could ask a court to declare a prescriptive easement to maintain the status quo.

Second, you could sell the strip of land to your neighbors. Perhaps you didn't know quite where the boundary line was anyway, so you might agree on a new one on your side of the encroachment and file it with the county recording office. Caution: If you or your neighbor has a mortgage, you will need to obtain the consent of the lender before either of you can transfer any land.

Third, you could grant written permission to use your land in that way. This maneuver can actually ward off a claim for prescriptive easement or adverse possession, because perfecting either of these claims requires showing that the use was open and hostile (without permission). If you like this neighbor but may not like those who follow, you might grant permission only as long as that neighbor owns the property. Your lawyer could draw up a document granting permission and file it for you.

The primary question when someone has encroached slightly onto your property is how important it is to you. Typically, disputes over encroachments arise when there's discord among neighbors. If everyone is getting along fine, chances are you can live quite happily even though your neighbors' fence does creep onto your land. Note, though, that the encroachment needs to be disclosed when you put your house on the market. An encroachment could derail a sale. Remember that when you go to sell your property, you will want to make certain that the buyer agrees to the encroachment in the contract of purchase, so it doesn't become a title issue at closing.