Encroachment occurs when one property owner either inadvertently or intentionally allows the use or occupation of his own property to cross over a neighboring property line that divides two pieces of property without the permission of the other property owner.
Florida has laws designed to protect property owners from encroachment. Owners are encouraged to take informal or legal action immediately when they discover there has been an encroachment.
If you are concerned and think that your neighbor is encroaching on your property, the Real Estate lawyers or Civil Litigation attorneys at the Cobb Cole Law Firm can help.
Examples of Encroachment
Examples of encroachment are:
- A tree on your neighbor’s property has branches that extend over your property, shedding leaves that you must clean up. The overhanging branches could also pose a safety risk to family and friends walking nearby, or you may simply find them intrusive.
- Your neighbor builds a fence that is completely or partially on your property.
- Your neighbor builds a pathway or driveway that is on your property.
- Your neighbor has outdoor structures that extend over your property, like an upstairs balcony that extends out over your property, or a shed that is built entirely or partially on your side of the property line.
A real-life scenario could be that a homeowner complained that his neighbor was building a fence that encroached on his property. However, a land survey revealed that the fence was correctly placed, and it was actually the complaining homeowner who was mistaken—his driveway had been built entirely on his neighbor’s property.
Is an Easement the Same Thing as an Encroachment?
No. An easement is not the same thing as an encroachment. The terms both involve a property owner going across the property line of their neighbor’s property. But, as discussed, an encroachment is when a property owner allows his use or occupancy of his property to cross over the property line onto his or her neighbor’s property without that neighbor’s permission.
Easements. An easement involves a legal agreement between the property owners allowing one owner to use a portion of the other owner’s property. It is usually included in the sale of the land, and the easement continues to exist after the sale of the property and is disclosed to the new owner during escrow.
One example of an easement is if you allow your neighbor to make a pathway across your property so the residents can easily get to a main road. Another common easement, particularly in rural areas, grants utility workers authorization to cross property to work on utility lines. Generally, with some exceptions, the terms of the easement are in writing.
Although there are different types of easements, the big difference to remember between easements and encroachments is that easements are agreed upon and allowed, but an encroachment, whether done intentionally or inadvertently, it is not done with permission.
Why Encroachments May Be a Problem
You might think that a pathway or driveway built by your neighbor that encroaches on your property is not a big deal. But, despite how you feel about it at the time you discover it, there may be serious consequences for not solving the problem legally. Some problems you may encounter if left alone include:
- Difficulty in selling the property. The neighbor’s tree branch hanging over onto your property may not cause a problem if the owner cuts it back, or you may not be bothered by the fence built a few feet on your side of the property line, but when you decide to sell your property, new buyers may not be so congenial. It is possible the encroachment is just enough for buyers to pass on the purchase and move on.
- Financing problems. This is related to the difficulty in selling the property. Mortgage lenders may not want to finance real estate that has an encroachment, making it difficult for buyers to obtain financing and, therefore, making it difficult for you to sell it.
- Legal issues. If you and your neighbor disagree about how to resolve the encroachment, litigation may ensue, delaying a potential sale or a building project you have been planning if your neighbor accuses you of encroaching. Contact the Cobb Cole Law Firm for assistance.
- Reduction of sale price. If a prospective buyer of your property is willing to allow the encroachment to remain without litigation, that buyer may decide it decreases the value of the property and offer you less money.
- Title issues: When property lines are not clear, there may be problems with the title.
Possible Resolutions
As soon as you suspect your neighbor is encroaching on your property, seek legal counsel. There are some options you may take to resolve the issue.
- Talk to your neighbor. Depending on how severe the encroachment is, you may be able to resolve it amicably. For example, the overhanging tree branch may be trimmed back, or the neighbors may voluntarily move the location of their proposed or existing fence back a few feet so it is entirely on their own property. Keep in mind that if the tree is healthy, the neighbor is not necessarily liable for any debris or natural shedding that occurs on your property. It’s important to note that removing or excessively trimming a healthy tree without the owner’s permission can lead to legal consequences.
- Obtain an official land survey. This will determine where the property lines actually are located. In Florida, a property survey is not required as part of the sale process and for escrow to close. A mortgage lender or title company may request it. But it is likely it was not done.
If it has not been done, you and the neighbor may agree to split the cost of the survey. This definitively determines where the property line is and whether there has been an encroachment. - Do nothing, and the structural encroachment may become a “prescriptive easement.” If one property owner continuously uses the property of another in a specific way, and you as the owner know about the use and allow it without objection, Florida law recognizes that a prescriptive easement can be created. There are a few requirements, but the continuous use must be for at least 20 years.
Attorneys at the Cobb Cole Law Firm Can Help
If you have an encroachment issue, you may need assistance from our real estate attorneys or our civil litigation attorneys. At our Cobb Cole Law Firm, we have attorneys who focus on whatever area of law that best suits your needs.
Each of our attorneys provides unique services which allow us to include multiple attorneys on a team who collaborate so that you get the best service available.
Contact Cobb Cole online or call 386-255-8171 to schedule a consultation
