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November 2, 2021

What To Do When You Spot An Encroachment On Your Property | PropertyShark

Here's what you can do about an encroachment on your property.

Written by Greg Nahas

Published on PropertyShark

What is an encroachment?

An actionable encroachment is the intrusion of a structure or even temporary object onto a neighboring property in the absence of right — either by agreement or law. This often takes the form of a fence or other border demarcation, but it can also be as innocuous as an oversized vehicle or jutting air conditioning unit.

Often, an encroachment is identified after obtaining a survey, either for tax purposes or perhaps as part of a renovation or other project. It could even be as simple as investigating part of the neighbor’s property you keep tripping on that turns out to be on your property.

What to Do

Neighboring property disputes can sometimes be contentious. Therefore, it’s always a good idea to try to communicate with your neighbor to express your concerns. Then, 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 indicate an impasse between the parties, it may be time to file a lawsuit. 

In the meantime, avoid touching, removing or damaging any encroachments, unless they create an imminent danger. Even then, seek consultation before doing anything.  always document the encroachments and their effect on your property with photographs or video.

Adverse Possession

An adverse possession is “the occupation of land to which another person has title with the intention of possessing it as one’s own.” Essentially, that translates to, “That fence has been there for as long as I can remember.” In other words, adverse possession is the adverse taking of someone else’s property through continued use and improvement for a period of 10 or more years (in New York).

A helpful way to remember the elements of adverse possession is with the acronym OCEAN.: Taking of property that is Open, Continuous, Exclusive, Adverse and Notorious for a period of 10 years.

Recent changes to New York law regarding adverse possession have reinvigorated the de minimus rule, which means that certain minimal encroachments — in some cases, even fences — are insufficiently adverse to trigger adverse possession. As such, it’s wise to understand how long an encroachment has been on your property, whether de minimus or otherwise. 

What Happens in an Encroachment Dispute

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, attending 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 of submissions.

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