As the old adage goes, good fences make good neighbors. Establishing and respecting boundaries that clearly define space and privacy are the foundation of any good neighborly relationship, but what happens when a neighbor crosses the proverbial fence to make use of your property for their own purposes?
Encroachment is a form of trespass where a permanent, often difficult-to-remove structure from a neighboring property crosses over the boundary line and intrudes onto someone else’s land. Common examples include fences, retaining walls, patios, and driveways. Encroachment happens more often than property owners realize, and in some instances is often unintentional. Nonetheless, it can trigger stress, animosity, and conflict, leading to irreparable damage between neighbors who may have previously been on good terms, necessitating the need for a process that protects your property while maintaining peace and harmony on both sides of the fence.
Though every situation has its own unique set of variables, the steps below can help guide any property owner to navigate a potential encroachment and avoid common pitfalls that cost valuable time and money:
1) Get a Property Survey: Misunderstanding where property lines fall is the number one cause of encroachment. The best way to verify whether your neighbors are encroaching over the line is to conduct a survey of the property by a licensed surveyor. Generally, the surveyor will stake the property and, upon request, provide a survey map. It’s best to obtain a survey during the due diligence period of purchasing a home as many encroachment issues can be addressed before the transaction is finalized.
2) Communicate With Your Neighbor: If a property survey confirms an encroachment, discuss the issue directly with your neighbor and see if they are willing to remove or relocate the encroaching structure. It is essential to approach these conversations in a friendly and amicable manner in order to reach a resolution.
In some instances, property owners may be agreeable to allowing their neighbor to keep the encroaching structure on their property, especially if it poses no harm or disruption. Property owners who are open to this type of compromise can negotiate an encroachment agreement, which is a formalized contract allowing the neighbor to continue using the encroached area under clear terms and conditions, such as maintenance responsibilities and liability protections. Granting an easement to your neighbor or selling a portion of the property are also voluntary options to explore, though all these scenarios should be vetted and managed by trusted legal counsel.
3) Send a Demand Letter: If the conversation with your neighbor is unproductive and does not generate a satisfactory solution, then the next step is to send them a formal demand letter via certified mail that addresses the encroachment, asserts your property rights, and lays out a reasonable timeline for your neighbor to remove the encroachment. Document all prior conversations on the matter and keep a copy of the letter in your personal records as you may need this down the road. A demand letter can be drafted by trusted legal counsel that explains the legal consequences to your neighbor for keeping the encroaching structure on your property.
4) Go to Court: If a neighbor ignores your letter, refuses to cooperate, and no agreement can be reached, your final option is to file a lawsuit for trespass and ejection, requesting the court to order the removal of the encroachment. Though this can sever the relationship with your neighbor, legal action may be required to protect your property rights.
In defense of the encroachment, a property owner can anticipate their neighbor claiming that the encroachment is protected by adverse possession, which under Georgia law can transfer ownership rights to an encroacher if they can prove they have maintained the disputed structure for at least 20 years with public, continuous, exclusive, uninterrupted, and peaceable use. It’s a high bar to meet, but understanding that aspect of the law highlights the importance of addressing potential encroachments as soon as they arise, as delaying action could have negative consequences down the road.
It is important to note property owners should resist the temptation to remove an encroaching structure themselves without consulting with trusted legal counsel. Property owners should also review their homeowner’s insurance policy to see if it provides coverage for encroachment-related claims.
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