What is Easement and Encroachment in Real Estate? Tips And Tricks

What is Encroachment in Real Estate?

Encroachment in real estate occurs when a person builds or extends a physical structure—like a wall, fence, garage, or even landscaping—onto someone else’s land without legal permission. This often leads to property disputes, legal complications, or reduced property value.

Whether you're a homebuyer, property investor, or simply a landowner, understanding encroachment is crucial for protecting your property rights.

🔍 Types of Encroachments You Should Know

1. Minor Encroachment

• Definition: Small, typically non-permanent intrusions like plants, garden décor, or shrubs extending over the property line.
  

• Example: A neighbor’s flowering plant creeping into your yard.
  

• Resolution: Usually settled through friendly discussion or minor adjustments.
  
  

2. Major Encroachment

• Definition: Larger-scale issues like overhanging tree branches or utility lines that cross onto your property.
  
  

• Example: A tree from your neighbor's yard hanging dangerously over your house.
  
  

• Risks: Can cause liability issues, property damage, and often appear in land or property surveys.
  

• Resolution: May require official notices or negotiation.
  
  

3. Structural Encroachment

• Definition: When permanent structures like a garage, fence, or even part of a house are built over your land.
  

• Example: A neighbor’s garage wall crossing your property line.
  

• Resolution: Often involves legal action, mediation, or negotiation of an easement.
  

🚧 What is an Easement?

In some cases, your neighbor may need to cross your land to access their own property. This is where an easement comes in.

🔑 Easement: A legal right that allows someone to use a portion of another person's land for a specific purpose, typically with the landowner’s consent.

• Usually documented in writing
  

• May involve compensation or mutual agreement
  

• Common in shared driveways, private road access, or utility lines
  

🛡️ How to Avoid Encroachment and Easement Issues as a Property Buyer

Avoiding encroachment and easement complications early on can save you thousands in legal fees, disputes, or loss of land use. Here’s a step-by-step guide to protect your property rights before and after purchasing.

✅ 1. Hire a Licensed Land Surveyor

A professional surveyor:

• Identifies accurate property boundaries.
  

• Flags any encroachments or right-of-way paths that may suggest an existing easement.
  

• Provides a site survey report that can be legally referenced.
  
  

Tip: Ask your surveyor to check for both physical and legal signs of access roads, pipelines, or usage paths across the land.

✅ 2. Verify Land Records and Title Documents

Visit the local talathi office or municipal records department to:

• Cross-check title ownership, land size, and dimensions.
  

• Look for any registered easements, rights-of-way, or public utility permissions on the land.
  

• Examine historical use to spot any unwritten or implied easement risks (e.g., neighbors regularly crossing the land).
  
  

Key Document to Check: “Encumbrance Certificate” — It shows whether the land has any legal burdens, including easements.

✅ 3. Check for Implied or Unrecorded Easements

Not all easements are documented. Look out for:

• Footpaths, driveways, or unpaved roads used by neighbors.
  

• Water pipelines, drainage channels, or overhead cables crossing the property.
  

• Access paths shared by multiple homes or farms.
  
  

If you notice any such patterns, ask the seller to clarify their legal status and get confirmation in writing.

✅ 4. Build a Boundary Wall or Fence

• Erect a wall or fence around the property to assert ownership.
  

• Helps prevent neighbors from using your land as a shortcut or establishing a future easement by use.
  

Why this matters: Under some local laws, repeated use of your land over time could give someone the right to claim easement through prescription.

✅ 5. Install “Private Property” and “No Access” Signs

• Reinforce your right to exclusive use by clearly marking the property.
  

• Especially effective against habitual crossing or unauthorized usage.
  

Legal Benefit: These signs can support your defense in court by showing you never permitted access.

✅ 6. Add Clauses in the Sale Agreement

When buying, include clauses that:

• Guarantee the property is free of encumbrances (including easements).
  

• Hold the seller legally liable if any undisclosed easement surfaces later.
  

• Require the seller to disclose any third-party usage agreements in place.
  

Get your real estate lawyer to vet all documents before signing.

⚖️ Quick Note on Easements

Easement: A legal right to use a portion of someone else's property for a specific purpose (e.g., access road, pipeline, water supply).
It may be express (written), implied, or prescriptive (established through long-term use).

📝 Key Takeaways

• Encroachment is any unauthorized intrusion onto your land and can be minor, major, or structural.
  

• Minor issues can often be resolved amicably, while structural encroachments may need legal intervention.
  

• Easements offer a legal pathway for shared use or access but should always be formally documented.
  

• Prevent encroachment by surveying your land, verifying official records, and clearly marking your boundaries.