Encroachments: What They Are And What To Do About Them

Encroachments in New York real estate transactions refer to a situation where a structure or part of a structure extends beyond the property line of its owner onto neighboring property without the neighbor's permission. This can happen in various ways, such as:

• Building overhangs: Portions of buildings, like roofs or balconies, may extend over a neighbor's property.

• Fences or walls: Fences or walls may be erected beyond the property line.

• Driveways: Driveways might encroach onto adjacent land.

Encroachments can be a significant issue in real estate transactions because they can create legal disputes and affect the value of the property. If an encroachment is discovered during a property sale, it can delay or possibly even prevent the transaction but it is unlikely an encroachment will stop a deal in its tracks.

It's essential for buyers and sellers to be aware of any potential encroachments and to address them before closing on a property. A survey must be conducted in order to identify encroachments and determine their extent. If an encroachment exists, the parties involved may need to negotiate a resolution, such as obtaining an easement from the neighbor or relocating the structure.

So what can be done in the event an encroachment is identified?

The most common encroachments are due to sheds and fences. In the event of a shed or any kind of temporary structure, the owner of the shed usually agrees to remove it or move it to a location so that it no longer encroaches on the neighboring property.

In the event that a fence has been installed more than twelve inches from the property line (encroachments of less than twelve inches are usually permissible in New York residential transactions), the most common solution, if the fence cannot be moved without considerable expense, is to enter into a fence / boundary affidavit with the neighbor. The essence of such an agreement is that the owner and neighbor recognize that the fence is not the property line but, rather, the fence varies from the property line and neither the owner nor neighbor have any adverse claim to the contrary.

That said, the bottom line is that, more times than not, the party obligated to cure an encroachment usually has options available to them that will satisfy the person interested in buying the property.

Otherwise, it's important to consult with an experienced real estate attorney to understand the specific legal implications of an encroachment in your situation and to explore potential resolutions. Call or email the real estate team at The Donaldson Law Firm, PLLC and let’s discuss how we can help you.