May 19, 2020

What Can You Do About Property Encroachments?


There were two families in Queens that lived next door to each other and were very friendly. They would often visit each other’s homes for dinner, coffee, and movies. They would have BBQ’s in each other’s yards, the kids would come over to the neighbor’s to go swimming in their above-ground pool. And this went on for years.

But then, something happened. They had a huge disagreement.

One day, the first neighbor started doing construction on their home, including installing a new fence that separated the neighbors’ property. They never mentioned anything about the construction to their neighbors.

But, after the new fence was installed, the next-door neighbor noticed that he now had to squeeze between his house and the new fence to get to his backyard.

So he rings the his neighbor’s bell and tells him, 
“Hey, you stole my property! Put the fence back where it was!”

The neighbor slams the door in his face.  So he calls the cops who come to the home and inspect the encroaching fence. They then proceed to tell him that there is nothing they can do. He shows the cops his survey of the property, and they look at it carefully and politely tell him that this is a civil matter and he should call a lawyer.

This blew up into a 5 year long litigation battle, which turned out to be both unnecessarily costly and frustrating. We are happy to report, however, that by the end, the neighbors became friends again.

What is an encroachment?

An encroachment is defined as, “the act of building a structure which is in whole or in part on a neighbor’s property,” and a good example is when the edge of a neighbor’s shed overlaps onto your lot.

What are other types of encroachments?

Example: My neighbor, out of spite, put up 25-foot trees between our property blocking the sun from my yard. What can I do?

Solution: Your neighbor must take the trees down since they exclude you from enjoying the sunlight and cause a private nuisance.

Whenever the owner or lessees of land shall erect or shall have erected thereon any fence or structure in the nature of a fence which shall exceed ten feet in height, to exclude the owner or occupant of a structure on adjoining land from the enjoyment of light or air, the owner or occupant who shall thereby be deprived of light or air shall be entitled to maintain an action in the supreme court to have such fence or structure adjudged a private nuisance. If it shall be so adjudged its continued maintenance may be enjoined. This section shall not preclude the owner or lessee of land from improving the same by the erection of any structure thereon in good faith.

Real Property Actions and Proceedings Law - RPAPL § 843

Example: There is a beautiful old tree that sits on both my property and my neighbor's property. My neighbor cut the tree down in retaliation after I asked him to keep their garbage can out front, closer to their side. What can I do?

Solution: Your neighbor must replace the tree that they cut down.

If any person, without the consent of the owner thereof, cuts, removes, injures or destroys, or causes to be cut, removed, injured or destroyed, any underwood, tree or timber on the land of another or on the common or other land of a city, village, town or county, or damages the land in the course thereof, an action may be maintained against such person for treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation.  Such reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration.

Real Property Actions and Proceedings Law - RPAPL § 861.

If you have any questions regarding encroachments or your property, feel free to give us a call at 212-213-8511.

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