Options for Handling Encroachments

Property encroachments, defined as an intrusion onto someone else’s real property, happen often. The fence you thought divided your property from your neighbor’s is actually a few feet off from the true property line. Maybe your gravel driveway has migrated over the years and now is partially in your neighbor’s front yard. And nothing quite gets some people’s blood boiling like the discovery that their neighbor’s shed was placed a few inches onto their property.

Your first step is to verify that the encroachment actually exists. Property lines as shown in Google Maps or city or county GIS applications aren’t accurate enough for this purpose. A licensed surveyor can confirm property lines and determine whether and how far the encroachment intrudes.

Once the encroachment is confirmed, you have a decision to make. Some people think a few encroachments between adjacent property owners is no big deal. Others find that correctly placed fences make good neighbors. But it’s hard to decide what to do about an encroachment if you don’t know what your options are. In Washington, you can:

• Ignore it. Doing nothing is always an option, but not always the best one. An old fence that zigzags a few inches both ways along a property line is one thing; your neighbor’s septic drainfield in your backyard is another. Consider the value of the land being encroached upon versus the effort and cost of resolving the issue and the likelihood of success. Be aware that ignoring the encroachment can have serious consequences up to and including the encroacher gaining title to the land they’ve encroached upon by adverse possession.
• Use an easement or a license. Easements and licenses are two different types of documents that grant someone the legal right to use someone else’s property. With regard to encroachments, the main difference is that an easement would typically be recorded and run with the land, while a license would be personal to the current occupants and extinguished when they leave. Easements and licenses can be useful tools to help defeat potential adverse possession claims.
• Record a boundary line agreement. Washington has a statutory boundary dispute resolution process described in RCW 58.04.007. The procedure may be used when there is a bona fide dispute about where a boundary line is located, including in cases where it is possible that one neighbor has acquired title to the encroached upon area through adverse possession. Like an easement or license, it requires the parties to agree. Boundary line agreements are very difficult DIY projects; we strongly recommend you consult an attorney if you are interested in pursuing this option.
• Regardless of whether you are the encroacher or encroachee (or both), a court may be able to provide you relief. The owner of land being encroached upon can ask the court to eject the encroacher and confirm that they own the land. In Washington, a court can also quiet title to the encroached-upon part of the land in the encroacher by adverse possession if their use of the land has been open, notorious, hostile, and uninterrupted for ten years. Keep in mind that litigation over encroachments is highly fact-specific and can take months or years.

We also recommend that you consult a lawyer who practices real estate or property law before deciding how to handle an encroachment. A lawyer can help you you weigh your options, draft documents, or initiate or defend litigation.

Of course, the best way to deal with encroachments is to prevent them. Read our blog post about avoiding boundary line disputes for more guidance.