Encroachment: When a Right of Way Becomes Trespass
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UPDATED: Jul 16, 2021
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Easements and encroachments affect the use of one person’s property by another. For example, people may have been crossing your property for years to gain access to adjacent land. The original owner (the owner before you) may have agreed to the access and may have given permission for this access in a legal document in exchange for some form of compensation (usually money). A legal easement could be created between the two parties, an easement that may now be binding on you as the current owner.
An easement can also be created without a formal agreement. For example, suppose a person builds a fence on her neighbor’s adjacent property. Though no agreement existed, the owner did not complain over the years. What started as an encroachment could turn into a legal possession through the legal tool of “adverse possession.”
Easement or Encroachment
An easement is the right to use another’s land for a designated purpose, such as accessing a beach. A right of way is a form of easement granted by the property owner permitting another to legally cross his land. Usually money is exchanged, it is in writing, and the right is passed on to future owners. In contrast, an encroachment is an unauthorized entry upon another’s land. Traditional common law created the action of trespass for the injury to the property, such as for the trampling of your flower bed by beach goers crossing your yard to get to the beach. When another interferes with your property rights by an unauthorized and direct breach of the boundaries of your land, you are entitled to bring a lawsuit for this encroachment and recover damages for the intrusion.
Check Your Records
Although the unauthorized use of your property may constitute trespass, check your property records to make sure there are no existing easements on your property allowing for public access, particularly if you live adjacent to public recreational property. A real estate attorney can help you sort out your rights and clear up any issues that prevent you from fully enjoying your property.