What is the difference between encroachment and easement? - Part One

October 03, 2022

People often confuse an easement with an encroachment, and it is for this reason that I decided to examine both principles in a two-part series.

Both involve a property owner making extensions over their neighbour's property. While encroachments are the unauthorised use of the neighbour's property, easements are agreed upon by both parties. An example of an easement can be seen when a property owner explicitly gives a neighbour permission to access a nearby beach through his property.

Encroachment in real estate is defined as one property owner violating their neighbour's rights by building or extending some feature and crossing on to their neighbour's property lines. This occurs when one party "advances beyond proper limits" or where one person "advances" or violates his boundary limits by building something on the neighbour's land or allowing something to hang over the adjoining property boundary.

While encroachment may seem harmless, it can lead to liability issues, damage to your property, and the most common issue being that a mortgagee (bank) rejects the property as security and the property cannot be sold to a purchaser obtaining a mortgage.

However, before drawing your own conclusions, kindly consult with a commissioned land surveyor who will prepare a surveyor's identification report on your behalf. The report will confirm your registered boundary and confirm whether a building, structure, or a boundary wall has overstepped your property boundary. Armed with that information, you will be able to make an informed decision as to how best to remedy the encroachment. Based on the type of encroachment, it is sometimes easiest to solve the problem by simply removing the wall or the structure that has overstepped the boundary. For instance, if you have a wall that is incorrectly constructed and it encroaches on your neighbour's property, or if it is a section of a building or some other structure, removing same will correct the problem immediately.

If the encroachment appears to be too costly, then both property owners can agree to sell/purchase the disputed section of the property that has gone beyond its registered boundary. Each encroachment is unique and for your specific concern, it is best for you to engage the services of a commissioned land surveyor who would prepare a 'pre-check' plan and an attorney-at-law who can properly advise you on what is your best option based on the specific encroachment.

An important consideration I want you to bear in mind is that Section 45 of the Limitations of Action Act indicates that once the boundary has been consented to by the owners (knowingly or not) for seven years, it becomes the boundary. Many property owners may not raise objections to encroachment on their property due to the relationship between them and their neighbour due to goodwill. However, if no protest is made by the adjoining landowners for seven years or more that a line, definitely marked by fence or wall, is the dividing line between them, it becomes the true boundary even though a survey may show otherwise.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. Marston may be contacted via email odanemarston@gmail.com. This article is for general information purposes only and does not constitute legal advice.

Other News Stories