When you’re shopping for a new Southern Maryland home, you’ll be introduced to a whole new vocabulary. I’ll be the first to agree with you that some of it is quite boring – take encroachments and easements, for instance.
But even though they sound ho-hum, both are important concepts. Today, let’s learn what these terms mean in plain English.
What’s an encroachment?
An encroachment describes the violation of a homeowner’s property rights. Let’s use an example: Imagine that your next-door neighbor, Frank, decides he is tired of having only a carport and builds a garage. When complete, the structure extends onto your property. This is an encroachment.
Encroachment can be intentional or unintentional, but typically it’s the latter. Unless you are absolutely sure where you’re property lines are – down to the inch! – you have no way of knowing if you’re encroaching on your neighbor’s property when you plant a hedge between your homes.
And, 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.
These paths are public rights-of-way, or easements — allowing others to travel or pass through their land. The homeowners on either side have no say in the matter.
The primary distinction, then, between encroachments and easements, is one of permission.
How to deal with encroachment — and why you must
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. You have a few options. The most common include ignoring the trespass, forcing Frank to remove the garage, offer Frank an easement, or have him sign an encroachment agreement. All of these solutions will require the advice and assistance of an attorney.
And if Frank doesn’t like any of these options? He may have one of his own – and you won’t like it: Adverse possession.
Yes, it’s 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 of 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:
- 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.
Brandywine MD Homes for Sale and Real Estate Services in Southern Maryland. You now have a search engine to help you with your Southern Maryland home search! And I’m ready to provide you with a custom home valuation if you’re considering selling your home. Let’s connect to discuss how I can help you. Contact Kimberly Bean at 301-440-1309
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