Eliza Theiss NYC-based boutique law firm Pardalis & Nohavicka brings the latest legal updates from the world of real estate. Pardalis & Nohavicka handles an eclectic array of matters, representing individuals and business owners in civil litigation, criminal cases and business transactions, currently litigating and representing clients throughout the United States and around the world.
What is an encroachment?
An actionable encroachment is the intrusion of a structure or even temporary object onto a neighboring property in the absence of right — either by agreement or law. This often takes the form of a fence or other border demarcation, but it can also be as innocuous as an oversized vehicle or jutting air conditioning unit.
Often, an encroachment is identified after obtaining a survey, either for tax purposes or perhaps as part of a renovation or other project. It could even be as simple as investigating part of the neighbor’s property you keep tripping on that turns out to be on your property.
What to Do
Neighboring property disputes can sometimes be contentious. Therefore, it’s always a good idea to try to communicate with your neighbor to express your concerns. Then, if your neighbor ignores you or disagrees with you, you can send a more formal notice, sometimes referred to as a notice of claim. When these steps indicate an impasse between the parties, it may be time to file a lawsuit.
In the meantime, avoid touching, removing or damaging any encroachments, unless they create an imminent danger. Even then, seek consultation before doing anything. always document the encroachments and their effect on your property with photographs or video.
Adverse Possession
An adverse possession is “the occupation of land to which another person has title with the intention of possessing it as one’s own.” Essentially, that translates to, “That fence has been there for as long as I can remember.” In other words, adverse possession is the adverse taking of someone else’s property through continued use and improvement for a period of 10 or more years (in New York).
A helpful way to remember the elements of adverse possession is with the acronym OCEAN.: Taking of property that is Open, Continuous, Exclusive, Adverse and Notorious for a period of 10 years.
Recent changes to New York law regarding adverse possession have reinvigorated the de minimus rule, which means that certain minimal encroachments — in some cases, even fences — are insufficiently adverse to trigger adverse possession. As such, it’s wise to understand how long an encroachment has been on your property, whether de minimus or otherwise.
What Happens in an Encroachment Dispute
An encroachment dispute often involves the following steps:
- Retaining a surveyor to establish and confirm property lines. Or, if you already have a survey, requesting your surveyor to provide his or her interpretation of the findings.
- Filing an emergency order to show cause seeking injunctive and other forms of relief, such as removing the encroachment or halting construction.
- Potentially, attending a hearing before a judge. In clear cases of encroachment — especially when your neighbor’s survey shows the same property lines as your own — the judge may be able to issue an order without a hearing, known as an order of submissions.
The Good, the Bad & the Ugly
Let’s use the following as an example: Five years ago, your neighbor Brad’s fence was blown down in a storm. Brad put up a new fence, but not in the same place. The new fence was a little closer to your house. You never said anything because it didn’t really bother you. Now, you want to add an addition to your home, so you have your property surveyed. Based on your survey, the town you live in notifies you that Brad’s fence is, in fact, on your property and that it also affects your acreage, thereby disqualifying the addition. You let your neighbor know what’s going on.
The Good: Brad looks at your survey and realizes his mistake. You both come to an agreement as to the correct property line and perhaps come to a cost-sharing agreement for the placement of the new fence. Your lawyer can help you draft the paperwork, including any potential boundary dispute agreement, allocation of cost or otherwise.
The Bad: Brad sees your survey and tells you that, while it may be correct, he put up the fence a long time ago, so the property is actually his. He’s sorry, but he’s also not moving the fence. You remember having read about a 10-year limit and decide to do something about it. Your lawyer can help you here by filing an order to show cause to remove the encroachment at Brad’s expense and rebut Brad’s argument about adverse possession. A case like this may very well generate an “order of submissions,” as previously referenced.
The Ugly: Brad looks at your survey and decides to get one of his own. Brad tells you that his surveyor also conducted a survey, and not only is the fence on his property, but it should be even further on your property. Brad tells you that it’s a good thing he got his own survey, because the swimming pool he plans to build is going to go beyond the fence and come within a foot of your backdoor. This is when your lawyer should immediately step in.
You’re going to need an emergency order to show cause seeking injunctive relief to stop construction of that pool. You’ll also need declaratory relief to determine the correct property line, monetary relief for any damage caused to your property and so on. In this circumstance, you probably won’t get an order on submissions because, even though Brad’s surveyor is unscrupulous, that is an issue of credibility, which cannot be decided on the papers. Instead, you would need a hearing.
We hope this guide sheds light on the many possible legal outcomes when encroachments occur. And, if there are any Brads living next to you, we hope it’s the Good Brad, but we’re ready for the Ugly one, too.
About:
Greg Nahas has been actively engaged in the practice of litigation for over twenty years. Prior to joining Pardalis & Nohavicka as Senior Trial Counsel, he has litigated on behalf of both plaintiffs and defendants at both the Trial Court and Appellate Court levels, before Arbitrators and Mediators in Alternative Dispute Resolution, and was a Complex Claims Director for Director and Officer Liability with AIG.
