Encroachment: When a Right of Way Becomes Trespass

Easements and encroachments affect the use of one person’s property by another. For example, people may have been crossing your property for years to gain access to adjacent land. The original owner (the owner before you) may have agreed to the access and may have given permission for this access in a legal document in exchange for some form of compensation (usually money). A legal easement could be created between the two parties, an easement that may now be binding on you as the current owner.
An easement can also be created without a formal agreement. For example, suppose a person builds a fence on her neighbor’s adjacent property. Though no agreement existed, the owner did not complain over the years. What started as an encroachment could turn into a legal possession through the legal tool of “adverse possession.”

Easement or Encroachment

An easement is the right to use another’s land for a designated purpose, such as accessing a beach. A right of way is a form of easement granted by the property owner permitting another to legally cross his land. Usually money is exchanged, it is in writing, and the right is passed on to future owners. In contrast, an encroachment is an unauthorized entry upon another’s land. Traditional common law created the action of trespass for the injury to the property, such as for the trampling of your flower bed by beach goers crossing your yard to get to the beach. When another interferes with your property rights by an unauthorized and direct breach of the boundaries of your land, you are entitled to bring a lawsuit for this encroachment and recover damages for the intrusion.

Check Your Records

Although the unauthorized use of your property may constitute trespass, check your property records to make sure there are no existing easements on your property allowing for public access, particularly if you live adjacent to public recreational property. A real estate attorney can help you sort out your rights and clear up any issues that prevent you from fully enjoying your property.

Case Studies: Navigating Easements and Encroachments – Implications for Insurance Coverage

Case Study 1: Established Easement

John purchases a property that is adjacent to a public park. Unknown to him, the previous owner had granted an easement allowing public access to the park through a portion of John’s land. As a result, individuals have been crossing John’s property for years to reach the park. John becomes aware of the easement and realizes that it affects his property rights and insurance coverage.

He consults with an attorney and insurance provider to understand the implications of the easement on his homeowner’s insurance policy. Together, they review the policy and make any necessary adjustments to ensure that John is adequately covered for any potential liability arising from the easement.

Case Study 2: Unauthorized Encroachment

Sarah discovers that her neighbor has built a shed that extends several feet onto her property. This encroachment interferes with Sarah’s property rights and could potentially lead to disputes and legal action. Sarah contacts her insurance provider to understand the coverage provided by her homeowner’s insurance policy in case of encroachment-related issues.

The insurance provider reviews Sarah’s policy and advises her on the coverage available for property boundary disputes and potential damages resulting from the encroachment. Sarah takes the necessary steps, including seeking legal advice, to address the encroachment and protect her property rights and insurance coverage.

Case Study 3: Adverse Possession

Mike has a vacant lot next to his property. Over time, his neighbor has been using a portion of Mike’s land for gardening without permission. According to the laws of adverse possession in his state, if someone uses another person’s property openly, continuously, and without permission for a certain period of time, they may gain legal ownership of that property.

Concerned about the potential loss of his property, Mike consults with an attorney and insurance provider to understand the implications of adverse possession on his property rights and insurance coverage. Together, they review his homeowner’s insurance policy and make any necessary adjustments to protect his interests in case of adverse possession claims.