Encroachment

New construction represents a distinct property type with nuances that experienced agents understand intimately. It's more than just a house that's never been lived in; it's a process. Agents frequently encounter the term “encroachment,” and while the encroachment definition might seem straightforward, its implications in real estate transactions can be surprisingly complex. Imagine a scenario: You're representing a buyer interested in a newly built home in a subdivision bordering an older established neighborhood. The survey reveals that the neighbor's recently installed fence extends a foot or two onto the property your client is considering purchasing. This is a classic example of real estate encroachment, and suddenly, the smooth path to closing just hit a major bump. It’s not just about the physical intrusion; it's about legal rights, potential disputes, and the devaluation of the property.

To clarify, encroachment is often confused with easements or adverse possession, but they are fundamentally different. An easement grants a specific right to use another's property for a particular purpose, like a utility company accessing underground lines. Adverse possession, on the other hand, can lead to a transfer of ownership if someone openly and notoriously occupies another's property for a statutory period, usually many years. Encroachment, in contrast, is simply an unauthorized intrusion. For instance, a builder mistakenly constructing a portion of a new home over the property line constitutes an encroachment, not adverse possession (at least initially). Similarly, an overhanging eave from a newly constructed house that extends beyond the property line is an encroachment, not an easement, unless formally granted. The key difference lies in permission and intent.

Historically, the concept of encroachment stems from the fundamental principle of property rights: the right to exclude others. As populations grew and land became more valuable, disputes over boundaries became inevitable. Early legal systems established mechanisms to resolve these disputes, with encroachment serving as a violation of those established boundaries. Over time, the remedies for encroachment have evolved, ranging from court-ordered removal of the offending structure to negotiated settlements involving compensation or the granting of an easement. In the early days of land development in places like Southern California, informal agreements were common, often resulting in more ambiguous boundaries and a greater likelihood of encroachment issues arising later on.

In today's market, the application of encroachment principles is significantly influenced by advancements in surveying technology and stricter enforcement of zoning regulations. Digital surveys using GPS and laser technology provide far more accurate boundary delineations, reducing the likelihood of unintentional encroachments during construction. Furthermore, homeowner's associations (HOAs) in many new developments actively monitor property lines to prevent violations. However, even with these safeguards, encroachments still occur. For example, a homeowner, without obtaining proper permits, might add a deck that extends into a setback area, thus creating an illegal encroachment. The rise of online property records and aerial imagery also makes it easier for both agents and clients to identify potential encroachment issues early in the transaction process.

Ultimately, agents representing either buyers or sellers must possess a working understanding of encroachment. For buyers, it's crucial to identify potential encroachments during the due diligence phase and understand the legal and financial implications. A thorough title search and survey are essential. For sellers, disclosing any known encroachments is paramount to avoid potential legal challenges later on. Failure to do so can lead to rescission of the sale or costly litigation. Agents should advise their clients to consult with real estate attorneys and surveyors to fully assess the situation and determine the best course of action. Ignoring a potential real estate encroachment is like ignoring a ticking time bomb; it will eventually explode and damage the transaction.