Encroachment & Easements in Chester County: Real Estate Legal Terms

The Andrea Fonash Group of RE/MAX Action Associates
Published on October 3, 2017

Encroachment & Easements in Chester County: Real Estate Legal Terms

When you’re shopping for homes in West Chester, 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.

Private Property sign.

What is encroachment?

Encroachment describes the violation of a West Chester homeowner’s property rights. It essentially means that someone is using your land without your permission.

Imagine your next-door neighbor, Frank, decides to build a garage. Frank and his builder don’t do their homework—they just start building. When the new garage is complete, it turns out that it actually extends onto your property by a few feet.

That’s encroachment.

Encroachment can be intentional or unintentional

Typically, it’s the latter—most people don’t go about trying to steal land.

Unless you’re absolutely sure where your property lines are, down to the inch (Chester County Recorder of Deeds can help you with this), you’ll have no way of knowing if you’re encroaching on your neighbor’s property when you decide to plant that oleander hedge between the two homes.

These instances are fairly common—in West Chester and everywhere else.

Easement Blueprints.

What is 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.

Beach Path.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 between encroachments and easements is permission — do the other people have the right to access and use your property or not? Encroachment: no. Easement: yes.

Here in Chesco, more common examples of easements—since they certainly won’t be beach access—are things like fences and barnsides, especially for older homes. If your neighbor’s structure was built before modern housing laws, it may have been granted an exception to extend past a property line.

Therefore your neighbors would have an easement to come onto your property when they need to do something like paint or repair the side of that structure.

Real Estate Lawyer.

Why & how to deal with encroachment

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 are:

  • Ignore the trespass
  • Force Frank to remove of the garage
  • Offer Frank an easement
  • Ask Frank to 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.

Neighbor Law, by Emily Doskow.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:

  • hostile
  • actual
  • 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!