Written By: Greg Nahas
An actionable encroachment is the intrusion of a structure, or even temporal object, onto a neighboring property in the absence of right either by agreement or at law. This often takes the form of a fence or other border demarcation, but can be as innocuous as an oversized vehicle or a jutting air conditioning unit.
People frequently notice an encroachment after obtaining a survey, either for tax purposes or perhaps in furtherance of a renovation or other project. Sometimes it can be as simple as investigating part of the neighbor’s property you keep tripping on which turns out to actually be on your property.
Neighboring property disputes can sometimes be contentious. It’s always a good idea to try and communicate with your neighbor to express your concerns. If your neighbor ignores you, or disagrees with you, you can send a more formal notice, sometimes referred to as a Notice of Claim. When these steps tend to indicate an impasse between the parties, it may be time to file a lawsuit.
It’s also a good idea not to touch, remove or damage any encroachments unless they create an imminent danger – even then, it’s a good idea to seek consultation before doing anything. You should document the encroachments, and their effect on your property, with photographs or video.
If you’ve encountered an encroachment problem in the past, there’s a good chance you’ve heard the term Adverse Possession - which is defined as “the occupation of land to which another person has title with the intention of possessing it as one's own.”
What that translates to is, “that fence has been there for as long as I can remember.”
Adverse Possession is the adverse taking of another’s property through continued use and improvement for a period of 10 or more years (in New York). A handy way to remember the elements of Adverse Possession is O.C.E.A.N. – or a taking of property that is Open, Continuous, Exclusive, Adverse and Notorious for a period of 10 years.
Recent changes to New York law with regard to Adverse Possession has reinvigorated the de minimus rule, which means certain minimal encroachments, in some cases even fences, are insufficiently adverse to trigger Adverse Possession. It’s always a good idea to have an understanding of how long an encroachment has been on your property, whether de minimus or otherwise.
An encroachment dispute often involves the following steps:
Let’s use the following as an example:
Five years ago, your neighbor Brad’s fence was blown down in a storm. Brad put up a new fence, but not in the same place - a little closer to your house. You never said anything because it didn’t really bother you. You now want to add an addition to your home so you have your property surveyed. Based on your survey, the town you live in notifies you that Brad’s fence is actually on your property and impacts your acreage so as to disqualify the addition. You let your neighbor know what’s going on.
We hope this helps, and that you think of PN if there are any Brads living next to you. We hope it’s the Good Brad, but we’re ready for the Ugly one too.
