Boundaries and Encroachments – A Lesson in Sharing – Part 2

What Does Sharing Have to Do with Boundaries and Encroachments?

Sometimes our selfish nature gets the better of us and we fight over things that should be shared. Disputes concerning boundaries and encroachments can often be resolved by better understanding how to share. Courts will often require sharing even when parties don’t want it.

What Are Encroachments?

An encroachment occurs when the boundary between adjoining lands is ignored and the owner of one side improves upon the land of the other. Disputes arise when the parties refuse to share and disagree about what should happen to the improvements that is encroaching over the boundary.

Legal Action Involving Encroachments.

Courts have the authority to grant relief against encroachments through mandatory injunctions requiring the removal of an encroaching improvement or through actions to eject, quiet title, abate a nuisance, or award damages.

A court may grant a mandatory injunction ordering the encroacher to remove the improvements. A court also has discretion to award special damages caused by the encroachment, including exemplary or punitive damages against an encroacher who either created or failed to remove the improvements with malicious intent.

However, a court will not automatically grant relief against an encroachment. Although an injunction may be granted, courts are required to exercise discretion to consider all the equities between the parties, and may deny an injunction.

Equity Applies.

Courts generally look at an encroachment case equitably when deciding what to do with the encroaching improvements. Under circumstances where it is clear that the encroacher knew or should have known that he was encroaching on his neighbor’s land, a court may be more inclined to order removal of the encroachments. However, many encroachments are inherited by the present owners, and the outcome is less certain.

In some cases, a court may give the encroacher the option to either remove the improvements or pay the neighbor the court determined fair price for the improvements to remain. A court can also deny the injunction and grant the encroacher an “equitable easement” over the improved property, when the harm to the encroacher outweighs the harm to the neighbor.

Equitable Easements for Encroachments.

Courts have ruled in some cases that an encroachment can remain. This results in an “equitable easement.” These cases are decided by applying three factors: 1) is the encroachment willful or the result from defendant’s negligence; 2) would the actual owner suffer irreparable injuries if the injunction is not order and if ordered, would the rights of the public be harmed; and 3) would granting the injunction place a hardship on the encroacher be greatly disproportionate to the hardship the actual owner suffered from the improvements?

To oppose an “equitable easement,” the actual owner must first show that the encroacher either willfully or negligently crossed over the boundary line. The actual owner must then show that without the injunction, he would suffer irreparable injury and the injunction would not harm the rights of the public. Lastly, the actual owner need only allege that the hardship on the encroacher to remove the improvements is less than the hardship to him from the improvements, as the burden to prove this last factor is on the encroacher.

To oppose an injunction, the encroacher must first show that he was innocent in believing the improved land was his. He must then show that the actual owner would not suffer irreparable injury from the denial of an injunction or, alternatively, the injunction would harm the rights of the public. Lastly, the encroacher must prove that the hardship from an injunction outweighs the hardship that the actual owner experiences from the improvements.

Where Is The Boundary?— “Agreed Boundaries.”

The location of the boundary between adjoining parcels can only be ascertained by a surveyor. However, if a survey is impossible, impractical, or unavailable, the parties can agree on a boundary and settle the issue.

Courts generally favor parties determining the boundary by agreement. Under this doctrine, owners of adjoining parcels, when uncertain of the location of the true boundary, agree to a boundary that is binding on both parties. There are three elements under this doctrine. There must be: 1) an uncertainty as to the true boundary; 2) an agreement between the neighboring owners fixing the boundary; and 3) acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.

The Bottom Line.

Encroachment and boundary disputes can’t be resolved without a “weighing of the equities.” It’s important to carefully analyze the respective hardships on both sides when deciding how to resolve such disputes. The Court will appreciate a party who makes an effort to be fair to his or her neighbor. If neighbors can agree to share the burdens of a solution, their dispute can promptly be resolved and their relationship can be spared.

For the first part of this article, see Lesson No. 1 – Easements

For questions relating to this article or for assistance with easement and boundary litigation, please contact the real estate attorneys at White and Bright.