Claiming Adverse Possession for Property Encroachment

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Encroachments arise under property law.  An encroachment occurs when some structure either partially or entirely is placed upon a neighbor’s property.  There are several ways an encroachment can be created, ranging from intentional acts to honest mistakes.  Remedying an encroachment may require legal action, such as paying the property owner for use of the property or a court-ordered removal of the encroachment structure.

Property Encroachment

Property encroachment often occurs between neighboring properties.  A property encroachment means that one of the properties has a structure or some object that protrudes onto the neighboring property.  One of the most common forms of property encroachment is the structural encroachment, which occurs when a piece of real property hangs over the property line and onto the neighboring lot.  The structure doing the encroaching may be a tree, bush, window, steps, stoop, garage, fence, part of a building, or some other fixture (physical property permanently attached to real property).

Property encroachments can arise for a variety of reasons.  Encroachments are sometimes the results of honest mistakes, bad surveys, as well as miscommunications between homeowners and their contractors or neighbors.  Property owners may not always know their exact property lines and, therefore, may encroach without evening knowing it.  Other times, property encroachment is deliberate, such as when neighbors have a difficult relationship and build fences where they have no legal right to do so.  Structural encroachments may also be created out of necessity, by accident, or by prescription (similar to adverse possession).

Potential Property Encroachment Claims

The individual with the property encroachment will typically consider 1 of 2 legal remedies when protecting their encroachment: adverse possession and prescriptive easement.  Both of these legal remedies aims to reduce litigation and preserve the peace by protecting the individual with long-standing possession.

Adverse possession means claiming full ownership of the land.  In order to win a claim for adverse possession, an individual must prove he or she used the land openly and notoriously, hostilely to the true property owner’s claim in the land, and continuously for the state statutory period (and in some cases, paid the taxes on the property claimed).  Some states permit accidental adverse possession (such as might occur with a surveying error).

Prescriptive easements may also provide the encroacher with legal relief.  A claim for prescriptive easement is simply a claim to use another’s land, not to possess it.  It is similar to adverse possession, except that in many states the individual is not required to pay taxes on the property.

Talk with an Attorney

If you would like more information regarding property encroachment or adverse possession laws in your state, contact a qualified attorney in your area.

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