Encroachments are serious title defects, although they are usually not recorded on the title. Surveys are normally required to uncover or disclose encroachments. Unfortunately, most buyers typically do not receive a copy of the survey until the day of closing.

Buyers and their attorneys must review the real estate contract carefully, to ensure that they won't be forced to accept encroachments. Many sellers will try to protect themselves by inserting a clause in the contract stating that the buyer will accept a title "subject to questions of survey" or "subject to such a state of facts as an accurate survey would show." By signing a contract that contains such a clause, the buyer would agree that any encroachment revealed by the survey would not make the title non-marketable.

Buyers should insist that the real estate contract require the seller to deliver a marketable title "free from all encumbrances and encroachments." This would protect the buyer, by giving the buyer the option to accept or reject encroachments. Oftentimes, the encroachments are trivial, such as when the encroachment is a matter of two inches. Nevertheless, this clause would allow the buyer to judge the situation for his or her benefit and give that buyer the option to cancel the deal.

Encroachment refers to improvements that extend over the property owner's legal boundaries. There are three common forms of encroachments:

  • Improvements on the subject property extend into public properties (or rights of way), such as streets and alleys.
  • Improvements on the subject property extend over a neighbor's property, such as when the eaves on your roof protrude over your lot line into your neighbor's air space.
  • Improvements on the neighboring property that extends over the subject property, such as when your neighbor's fence has been built on your side of the boundary line.

The danger posed by encroachments—and technically makes the title non-marketable—is that the aggrieved property owner may demand removal of the encroachment. The aggrieved property owner would be entitled to sue for such a cure. Most courts will routinely agree with the aggrieved property owner, except where the court deems that the encroachment is trivial. Triviality is fairly relative, but usually extends to a couple of inches, with regard to fixtures. Permanent improvements such as buildings are another matter.

Removal of an encroachment can be very expensive when the improvement involved is a building, rather than a fixture.

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