What is the difference between easement and encroachment? There are several types, including Common, Prescriptive, and Appurtenant easements. To better understand these terms, keep reading. We will go over common encroachments and their differences in legal ramifications. Learn how to determine which one applies to you and your property. After all, you’ll be better equipped to make a well-informed decision.
Common Easements
There are many different ways to determine if your land is surrounded by common easements and encroachment. In some cases, a neighbor may have built a shed on your land before you did, or they may share a driveway with you.
Either way, you may have a prescriptive easement. It is important to talk to your neighbor and have a land survey done before making any changes.
Whether or not a property has a documented easement is a legal question that you will have to answer. Some easements are unavoidable, while others are not.
The landowner can use a fence to prevent access, erect a wall or gate, or place an easement in order to limit access. Likewise, an owner may enclose a right-of-way to block a driveway.
While an encroachment occurs when another person uses your land without permission, an easement is a legal agreement between two parties. An easement allows you to use another’s property, but it is also illegal to build on someone else’s land.
These types of encroachments can go on for years without any resolution. This is a good time to consult a real estate attorney.
Another common situation that can result in an encroachment is when a neighbor builds a structure on your land. Most of the time, this is unintentional, and encroachment isn’t always intentional.
A fence that sticks out a few feet or a tree that hangs over the property line are examples of encroachments. You should contact a real estate attorney if you suspect that your neighbor is violating any of these rights.
Prescriptive Easement
If you’re trying to protect your land from encroachment, you need to understand the difference between prescriptive easements and encroachment. While prescriptive easements are more formal, encroachments may be more vague and difficult to prove.
But there are a few key differences between them that may help you decide which type of easement is best for your property.
The first distinction between a prescriptive easement and an encroachment is the burden of proof. The burden of proof is on the party who encroaches upon the other. If the encroachment is infringed upon, the burden of proof is on the encroacher to prove that he has the right to use the encroached property.
The second difference between encroachment and a prescriptive easement is the length of the agreement. A prescriptive easement lasts for a specified period of time. It can only last for a limited period of time, and it cannot be renewed.
If the easement is for a short period of time, the grantee can simply trim the branches back to the property line. A prescription easement is not transferable, but the encroachment can be used to get compensation for damage caused to the property.
In contrast, a prescriptive easement is limited to actual users. Although the right of use may pass to a trespasser, it does not extend to land more than a thousand yards inland from the mean high tide line.
If a trespasser is trespassing, the right to use the property is limited to the historic manner and scope of usage. However, courts have allowed variations in usage to account for normal evolution of the dominant estate.
In order for an easement to be created, the owner must have received notice of the proposed use. Otherwise, the use will be deemed an encroachment. If the neighbor gives the permission, the owner cannot claim that a prescriptive easement was created.
However, an adverse use of the property could give rise to trespass. Further, the use of the land must also be in the owner’s interest. The owner can take legal action for trespass if the neighbor fails to give consent.
Appurtenant Easement
An appurtenant easement, also known as an easement by appurtenant, is a right that an individual has to use another parcel of land.
This right transfers with the land when the owner of one parcel transfers to another. For example, if the owner of one lot transfers to another to build a beach house or a walkway to a lake, an appurtenant easement may apply to that property.
An encroachment, on the other hand, conveys no ownership rights. It’s like placing a shed on your neighbor’s land – the trespasser has no ownership rights in it. By contrast, an easement holder gains a non-possessory interest in the land. An easement can only give you access to that land, but not ownership rights.
An appurtenant easement only lasts as long as the property’s conditions require it. For instance, if the government decides to build a new road on your neighbor’s property, he will no longer be able to use the land for that purpose.
This doesn’t matter if the new route is inconvenient or not. The new road will eliminate the need for the easement.
An appurtenant easement can be good or bad for a homeowner. A routine title search will show you whether or not the easement is present in the property. If so, it is best to review the terms of the easement.
If a property owner is in the process of selling or buying, he or she should seek legal advice. A title insurance provider should research any existing easements in the area and advise the homeowner on whether or not they will conflict with the sale or ownership of the property.
Another important consideration is whether the easement is public or private. Public easements are a good example of an appurtenant easement.
A public easement is a good example of an easement that grants the public access over a parcel. However, a private easement will benefit the dominant estate and is more likely to be uncontestable than a public one.
Common Encroachment
When you own property, you must be careful of easements and encroachments. An encroachment occurs when someone uses your land in some way without your permission, for example, a neighbor may encroach on your property to use it for a private road or to build a shed. These situations are the result of a prescriptive easement. While you might not want your neighbor to use your land, it is better to protect your rights than to allow it to be used by someone else.
Whether you are building a home, building a shed on your neighbor’s property, or walking through their yard, understanding how encroachments work is vital to your property’s value.
There are differences between an easement and an encroachment. In most cases, an encroachment is illegal and could lead to problems when it comes to title insurance and homeowner’s insurance.
In some cases, encroachment occurs accidentally and the property owner is unaware of their contractual rights. While building or extending a structure on your own property is perfectly fine, you should be aware of the property line of your neighbor.
If the situation becomes a nuisance, you may want to seek legal action against your neighbor. For example, if your neighbor builds a shed on their property, the encroachment may be a cause of a lawsuit.
There are times when homeowners will willingly build on their neighbors’ land without getting the proper permits or tearing down disputed fences in the middle of the night.
In such cases, it is wise to seek legal counsel because litigation can be costly. Legal fees and court fees can add up quickly, so it is advisable to exhaust all other options before pursuing litigation. Once a legal settlement is reached, the parties may be able to sell the encroached property to compensate for the damage.
Generally, encroachment occurs when one property owner or business trespasses onto another’s land. This may be unintentional or intentional, but it can negatively affect the value of the property that is invaded.
This could be anything from a fence to a building that extends over the property line. However, most encroachments are a result of carelessness, and may not even be considered an encroachment.
