How To Protect Your Property From Encroachments

While you might never think that one foot in length would make a difference, in the world of real estate transactions it often can. The laws concerning property lines are complex in any jurisdiction, and this is all the more true in the state and city of New York, where the legal consequences of encroachments can significantly change the value and the risks of a property.

What is an encroachment?

An encroachment is defined as, “the act of building a structure which is in whole or in part on a neighbor’s property,” and a good example is when the edge of a neighbor’s shed overlaps onto your lot.

How does a buyer protect themselves from potential encroachments?

A standard residential contract in New York includes language conveying the property subject to any encroachments (Section 9(c) of the New York City Bar standard residential contract).

  • To protect our clients, we include language in our riders to the contract limiting such encroachments to one foot in length.
  • In New York, small or “de minimis” encroachment such as shrubbery or a fence are permitted and do not create a claim for adverse possession. 
  • A purchaser should always a obtain a survey that will identify the actual boundaries of the property and depict any encroachments within the boundary lines.
  • In circumstances where the encroachments exceed one foot, generally title companies would deem the title unmarketable, making the contract of sale void.

How does a property owner remedy an encroachment to prevent a claim for adverse possession?

There are several options to terminate an encroachment and this issue can even be resolved outside of court.

  • You can have a friendly discussion with the possessor to see if they are willing to move the structure off of your property or you can make an offer to sell the encroached property.
  • A possessor may be inclined to accept the offer if the encroached portion of the property is large.
  • Another options is to make a claim for quiet title, a proceeding brought in court to clear any ambiguity concerning a title.

If you have any questions about your property, give us a call at 212-213-8511.

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