August 3, 2021

Encroachments: What are they and what can you do about them?

Encroachments: What are they and what can you do about them?

Written By: Greg Nahas


What is an encroachment?

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. 

How do you see it?

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. 

What can you do about it?

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: 

  • Retaining a surveyor to establish and confirm property lines, or if you already have a survey, requesting your surveyor to provide his or her interpretation of the findings.
  • Filing an emergency Order to Show Cause seeking Injunctive and other forms of Relief, such as removing the encroachment or halting construction.
  • Potentially, a hearing before a Judge. In clear cases of encroachment, especially when your neighbor’s survey shows the same property lines as your own, the Judge may be able to issue an Order without a hearing, known as an Order on Submissions. 

Example: The Good, The Not-So Good, and The Ugly

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.

  • The Good: Brad looks at your survey and realizes his mistake. You both come to an agreement as to the correct property line and perhaps come to a cost sharing agreement as to the placement of the new fence. PN Lawyers can help you draft the paperwork, including any potential Boundary Dispute Agreement, allocation of cost or otherwise.
  • The Not-So-Good: Brad sees your survey and tells you that maybe it’s correct, but he put the fence up a long time ago, so the property is actually his. He’s sorry, but he’s also not moving the fence. You remember having read something about a 10 year period, and decide to do something about it. PN can help you with this by filing an Order to Show Cause to remove the encroachment at Brad’s expense and rebut Brad’s argument about Adverse Possession. A case like this may very well generate an “Order on Submissions” we talked about above.
  • The Ugly: Brad looks at your survey and decides to get one of his own. Brad tells you that his surveyor, Shady McSnatchandgrab, did a survey, and not only is the fence on his property, but it should be even further on your property. Brad tells you it’s a good thing he got his own survey, because the swimming pool he plans on building is going to go beyond the fence and come to within a foot of your backdoor. PN can definitely help you here. You’re going to need an Emergency Order to Show Cause seeking Injunctive Relief to stop construction of that pool, you’ll also need declaratory relief as to the correct property line, monetary relief for any damage caused to your property, and so on. In this circumstance, you probably will not get an Order on Submissions because, even though Brad’s surveyor is, well, Shady, that is an issue of credibility which can not be decided on the papers. You would need a hearing. 

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.

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