By Oscar T Blasingame, Esq.
When you’re shopping for homes you’ll be introduced to an entirely new vocabulary and I’ll be the first to agree with you that some of it seems downright boring. Take encroachments and easements, for instance.
Though they sound ho-hum, they are both important concepts so today I thought I’d try to put them in plain English for you.
What’s an encroachment?
Encroachment describes the violation of a homeowner’s property rights. Imagine your next-door neighbor, Frank, decides he is tired of having only a carport and builds a garage. When complete, the structure extends onto your property. This is encroachment.
Encroachment can be intentional or unintentional
And, typically, it’s the latter. Unless you are absolutely sure where your property lines are — down to the inch — you’ll have no way of knowing if you’re encroaching on your neighbor’s property when you decide to plant that gorgeous oleander hedge between the two homes.
And, an easement?
In Hawaii, all beaches are publicly-owned and the public is ensured access to all “land below the high-water mark on any coastal shoreline.”
In other words, should you purchase a home on a beach in our 50th state, you cannot block the public from using that beach. In Kahala (on Oahu) for instance, you’ll find pathways that cut between multi-million- dollar homes, from Kahala Avenue to the water.
These paths are public rights-of-ways, or easements — allowing others to travel or pass through their land. And the homeowners on either side have no say in the matter.
The primary distinction, then, between encroachments and easements, is one of permission.
How to deal with encroachment — and why you must
When an encroachment comes to light, both parties have options. Remember Frank – the neighbor who built his garage partially on your property? Suppose this happened decades before you figured out that he had encroached on your property.
You approach Frank, voicing your displeasure. Your most common options include ignoring the trespass, forcing the removal of the garage, offer Frank an easement or have him sign an encroachment agreement.
All of these remedies require the advice and assistance of an attorney
What if Frank doesn’t like any of these options? He may have one of his own (and you won’t like it): adverse possession.
Yes, another ho-hum real estate/legal term, but one that has a huge impact, if invoked. Through the adverse possession process, Frank may be able to gain ownership your portion of the land on which the garage sits.
In fact, adverse possession can be used to gain ownership of “just a few feet of property or hundreds of acres,” according to Emily Doskow, attorney and author of “Neighbor Law: Fences, Trees Boundaries & Noise.”
Although state laws vary, Doskow says that courts generally apply a “four-factor test” when looking at adverse possession claims. The occupation of the land must be:
- open and notorious
- exclusive and continuous for a certain period of time
Courts don’t define “hostile” the way we do. In an adverse possession case, it describes that Frank’s possession of your land is hostile to your interests.
Then, the courts will want to see that Frank actually used your land as if he were the owner.
He can prove this, according to Doskow, if he can produce records showing he maintained or improved the property or paid taxes on it.
The third factor of the test is that Frank’s use of your property must be obvious “to anyone – including a property owner.”
Finally, Frank must prove that he controlled the land exclusively (meaning he didn’t share it with you) and that he did so for certain amount of time (which varies by state).
How to avoid adverse possession
When determining how to deal with encroachment, it’s important to keep Frank’s option in mind.
Your best option, in any type of encroachment, may be to either offer to rent the offender that piece of your property or grant him an easement.
But, it’s critical that you contact a real estate attorney who will help you consider all possible options. And do it quickly because there is a statute of limitations.
About the author: Oscar is a practicing, Florida attorney, Realtor, and Florida Supreme Court Certified Mediator. He began working in real estate as a Realtor in 1994 and later went on to become a real estate attorney in 2002. From 2002-2005 Oscar was the sales director for Ballast Point homes LLC. During his tenure with Ballast Point Homes, he managed a sales team that produced over 55 million dollars in condominium and townhome sales. With over twenty years of experience, Oscar represents buyers, sellers, business owners, other Realtors, and Brokers with professional, personalized service. In addition to residential sales, as an attorney, Oscar has written and negotiated many commercial and residential contracts and leases. He currently represents several local businesses including two restaurant chains.
A native of St. Petersburg, Florida, he received a B.A. from the University of Florida and a J.D. from Stetson University’s College of Law. Oscar is US Army veteran and former Judge Advocate. As a captain in the Army JAG Corps, he served in the 3rd Infantry Division and then as Chief of Client Services, Schweinfurt, Germany and Chief of Criminal Justice for the 200th MP Command, Ft. Meade, Maryland. He is a certified VA attorney representative and an active member of VARep, an organization of real estate professionals dedicated to representing and education veterans. Oscar focuses his passion for real estate on providing exceptional client services.
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