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Encroachment — Just Say No!

by | Oct 31, 2021 | Real Estate Encroachment Disputes, Real Estate Litigation

Several times per year Buffington Law Firm’s real estate litigation team is called upon to deal with a situation involving an encroachment.  An encroachment is a situation where the owner of an adjacent land parcel places some type of structure onto the land of another, i.e. onto your property.  This may be a wall, a portion of a building or room, it may be a fence that attempts to “fence off” a portion of your property thereby preventing your use of it — there are many kinds of encroachments.  Over the years Buffington Law Firm has handled many lawsuits involving encroachments.

Generally, all encroachments constitute a legal trespass — a “chattel trespass” which is simply a trespass by someone’s property rather than by the person him or her self.  It also gives rise to an action for recovery of real property.  Sometimes (not always) the encroachment is preceded by some sort of request by the neighbor.  The encroaching party may ask for the neighbor to “sign off” on the encroachment in some way, such as a CC&R variance or the like.  Or, for certain types of encroachments, the neighbor may give reassurance that the encroachment is temporary.  In fortunate circumstances this will alert the other neighbor of the prospective encroachment.  Of course, in many cases this is not done — the encroaching neighbor simply constructs the encroachment without discussion hoping that the other party will either not notice it or will let it pass.

In our experience, the best course of action is to deal with an encroachment immediately, and to refuse permission.  “Temporary” encroachments have a way of quickly becoming permanent, at least in the mind of the encroaching party.  After all, an encroachment is really a taking of your property, usually by a near stranger.  Furthermore, sometimes the encroaching party sells his or her property.  When this happens, almost invariably the new owner is hostile to the idea of removing the encroachment.  Not uncommonly, either the original neighbor or the new neighbor eventually claims that they have acquired the right to maintain the encroachment forever, by the doctrine of adverse possession or some other legal doctrine. (Usually this is not actually true.)  When this happens, the only way for you to deal with the situation is via a lawsuit.  This is the usual reward for allowing an encroachment in the first place.

Often, the victim of an encroachment does not know about the encroachment right away.  In such a case, our Firm believes that the best course of action is to immediately file an action for recovery of real property and trespass.  Delay is always a very bad idea in litigation — and this is generally a situation in which litigation is called for.  Statutes of Limitations can be interpreted differently by different courts in differing circumstances.  Do not wait, thinking that you understand the applicable Statute of Limitation for your situation.  You may get it wrong, and thereby lose your right to recover your property.  Consult legal counsel immediately if you are being victimized by an encroachment.

If you are in a situation involving an encroachment, we invite you to contact Buffington Law Firm for a Free Legal Consultation (714-450-6568).  All consultations are handled by an experienced real estate litigation attorney.  Attorney-Client Privilege always applies, and there is never any obligation or charge for the consultation.