Our survey at Van Gogh Lofts development project on South Henderson Street revealed an encroachment by the neighboring property. Owners there had erected a walkway that projected over our property line.
1. What is an encroachment?
An encroachment is a situation in real estate where a property owner violates the property rights of his neighbor by building something on the neighbor's land or by allowing something to hang over onto the neighbor's property. Encroachment can be a problem along property lines when a property owner is not aware of his property boundaries or intentionally chooses to violate his neighbor's boundaries. This is also known as structural encroachment.
In some cases, when the encroachment exists before you purchase your property, the owner that has the encroachment is not required to remove it, particularly in the case of a house eave or addition that extends the original property into an encroachment situation. When you have an encroachment situation where an agreement cannot be reached, it will be necessary to take the matter to court and let a judge make an official ruling.
We do not want to grant the neighboring property an easement for this encroachment, as it will negatively impact our project development.
2. What is an Easement?
An easement allows the usage of a pathway between adjacent properties. An easement may involve a pathway to reach a common play area, yard or even a fish pond. The legal terminology of easement allows someone the legal right to use something not belonging to them. Easement refers to real property and allows a legal right of usage. An affirmative easement is the official permission and right to use another's property for a specific reason. A negative easement disallows the right for someone to use another's property.
a. Easement and Common Law
Easements are ruled and followed by real estate law, yet common law procedures enforce certain types of easements. There are four types of easements that are typically, over time, enforced by the common law courts.
The most common easement is called the Right of Way in which people can pass through an area. Easement of support refers to excavations of property. Less common are Easements of light and air and rights regarding artificial waterways. The four types of easements are usually for very specialized scenarios. The most used easement is the Right of Way easement. The letter carrier, water meter reader and UPS delivery person all have the right to step on your property by easement of right of way.
b. Creation of Easement
Easements are mostly created by a binding written document. Most courts in the United States favor a written explicit easement. Verbal and implied easements are complex. Courts base the allowance to have an easement on intention of the original parties in each situation. Courts take into account customs, habits and practices for the property in question for usage of easements. Courts prefer having written intentions, although courts will allow implied easement after researching intent of the parties.
Fortunately, this encroachment on our property has been there for less than two years. The property owner was unaware of the encroachment, and did not allow it. Therefore, it should not qualify as adverse possession.
3. What is Adverse Possession?
Adverse possession is a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law. Personal Property may also be acquired by adverse possession.
Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time. Prescription is not the same, however, because title acquired under it is presumed to have resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession.
Title to land is acquired by adverse possession as a result of the lapse of the Statute of Limitations for Ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to the entire world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.
The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner.
Title by adverse possession may be acquired against any person or corporation not excepted by statute. Property held by the federal government, a state, or a Municipal Corporation cannot be taken by adverse possession. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession.
It is the job of the Seller to deliver clean title, and in this case, Van Gogh Development Corporation expects the Seller to clear title on this property, prior to our closing in July.
Happy investing!
