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Legal Procedure for Fighting Land Encroachment

Legal Procedure for Fighting Land Encroachment

Your right to your property is fundamental and when that right is encroached, it’s natural to want justice and to seek appropriate redress. But it’s also natural to want to get along with your neighbor, be it in a residential neighborhood or a commercial development. The legal procedure for land encroachment is designed to facilitate solutions that make it more likely you can protect both your property and your relationships.

Is My Property Being Encroached?

The first step is to simply be aware of whether your property rights are being violated. A neighbor does have the right to build a fence in their yard. But there is no right to have that fence–even a little–move onto your property.

Even if the fence stays within its proper boundaries, there are still laws in the state of Connecticut that require proper upkeep–because the condition of a fence affects the appearance of the surrounding homes too. A town selectman is who you would appeal to regarding fencing problems–presuming that no agreement can be worked out privately.

Or perhaps your neighbor’s tree is well within their own property line, but over the years it’s grown and now the branches are starting to overhang into your yard. This is land encroachment.

These are in addition to more flagrant examples, like building an addition to the garage or the house that moves well past the property line and into your yard.

Conversely, there are some cases that might seem like encroachment, but in fact are not. As we’ll discuss in a moment, there are situations where a neighbor might be allowed to access your driveway or some other part of your property.

Therefore, the first step in the legal procedure for land encroachment is to do some research. You’ll need to know the precise points where your property lines end.

Finding Out Your Property Boundaries

There are physical markers at the corners of your property. You may not have noticed, because they are often buried below the surface. You can use a metal detector to lead you to the right spot and then do some digging.

If you prefer not to dig up your lawn, the same information is available on the land survey that you can obtain from the county clerk’s office. The survey will have complete information about your property line. Be aware, though, that the property grids are not drawn up for laymen. The level of detail available is meant for professional surveyors and it’s not uncommon for the typical person to need help comprehending the survey.

Both of the above options–digging for the land marker or going to the county clerk–are DIY options for finding your property boundaries. You can also simply hire a land surveyor who will come out and mark the boundaries. Land surveyors licensed with this authority can be easily found by contacting City Hall.

It’s not uncommon for land surveys to run into the four figures cost-wise. For that reason, in addition to keeping a friendly relationship, you may choose to talk with your neighbor. Neither one of you are sure exactly where the property boundaries are, but you start finding some general agreement. In cases like this, you and your neighbor can simply agree that a certain spot is where the property line is.

Now, don’t keep this between yourselves. It’s important to bring in a real estate attorney to formalize what will be called a lot line adjustment agreement. The first reason is that your neighbor may change their mind at some future point. The second is that if you sell your property, you can run into serious problems with title insurance if a neighbor has built onto your property.

Finally, and of most immediate concern, is that if you are paying off a mortgage, any change in the property without the lender signing off is a breach of the mortgage.

If the agreed-upon boundaries are put into a legal agreement, you’ll have protection. Your attorney will also be able to check local zoning and ordinances and ensure everything is in compliance, including whether you and your neighbor will need to appear before a town commission to get the adjustment approved. You will then file it with the local land records office.

The Easement Obstacle

Let’s say you and your neighbor were unable to see eye-to-eye and you see no recourse other than to bring a trespass lawsuit. One factor that you and your lawyer will make sure to know before the court challenge is whether there are any easements on the property.

An easement is where someone else has obtained a legal right to use your property. It’s important to bring your lawsuit sooner rather than later, because one of those easements falls under the doctrine of adverse possession.

If your neighbor uses your property without challenge for a 15-year period, so long as that use has been out in the open, adverse possession says it becomes theirs. Think of it as the real estate version of a common law marriage. A situation that sits long enough simply becomes what it appears as in the eyes of the law.

This means that land encroachments must also be considered at the front end, when you are buying the property. Be aware of the precise points of where your boundaries are, if neighbors have encroached and if they have effectively taken ownership of those areas through adverse possession.

The utility easement could be something fairly harmless, like the local water company having the right to run pipes underneath your lawn. But other easements can be more intrusive.

Let’s say you and your neighbor share a driveway. You both live on a modest hill, you are a little bit further up from them. You come down a side road and can easily enter directly into your garage or go down a bit of a slope to your neighbor’s house. The neighbor basically must use your driveway to get to their own house. This effectively creates an easement–they have a right to use your property so they can access their own.

To continue with this example, let’s say your neighbor also has a second entrance that’s exclusively theirs, but it requires turning off a main road and going uphill into the driveway.

You’d vastly prefer they use their own driveway. But we can get some icy winters here in the Northeast. What if going down the driveway would put them at risk of sliding into traffic? Or if they were unable to get back in because of the ice? The safest way for them to enter and exit might be to use your access point, which could be seen by the courts as creating an easement of necessity.

Easements of necessity can also be common in rural settings, where a farm property could be landlocked and lacking direct access to a road without going through a neighbor’s property. The court will grant relief to the person who simply wants to use the road.

Easements become a part of the property itself and do not change when a property changes hands. It’s incumbent upon an owner to tell you about any easements when they buy the land.

No matter what side of the boundary you are on, you have a right to your property and to fair treatment under the law. Fitzpatrick Santos Sousa Perugini P.C. will work with you. We’ll help you talk to your neighbor and their attorney and see if a private solution can be worked out. If it can’t be, we’re prepared to go to court if that’s what it takes to secure your rights. Our team of attorneys and legal staff is talented, experienced, and ready to help. Call us today at (203) 583-8299 or reach out to us online.