Encroachments are intrusions onto one’s property. An example of an encroachment is when a fence or wall extends beyond the owner's property line onto another owner's property.
In a sales transaction, a seller may discover that improvements for his property may be beyond his property line, or that the neighbor has built something that extends beyond the neighbor's boundary into the seller's property. A buyer may find that the property he is interested in purchasing has encroachment problems.
When one sells real property, the DROA provides that seller must convey good title to the buyer. An encroachment is deemed to affect the title. Encroachments problems can be addressed in a number of ways.
Encroachment problems became more common with the introduction of more precise survey instruments. There were so many problems, the legislature enacted a de minimus rule for residential real property. This rule provides that if the encroachment is six inches or less, the intrusion, by statute, is not deemed to be an encroachment and nothing further needs to be done. Most title companies, however, prefer that a written encroachment agreement be drafted, signed and recorded. This would remove any doubts and would set forth the responsibilities of the neighboring owners.
An encroachment agreement is a relatively simple agreement between the two adjoining property owners. The property owners acknowledge the encroachment. The owner who is encroaching agrees to maintain the encroachment and to hold the other owner harmless from any damage that might be caused by the encroachment. The encroaching owner further confirms that no claims of ownership are being asserted against the property upon which he is encroaching. The owner, on whose property there is the encroachment, agrees that the improvements can remain where they are. Encroachment agreements are signed by all the owners of the properties involved. The fully signed and notarized encroachment agreement is recorded in Land Court or the regular system, depending upon the property. The encroachment agreement is binding on all future owners. It is intended to be a permanent remedy to the problem.
If there is a good relationship between the parties, an encroachment agreement usually does not present a problem to secure. The encroachment agreement clears any title concerns for both neighbors' properties.
Difficulties may arise if there is a poor relationship between the neighbors. If either of the neighbors is unwilling to sign an encroachment agreement and if the encroachment is greater than six inches, the de minimus rule would not apply. The party who is encroaching then faces the prospect of removing the encroachment.
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