Buying a home? Don’t sign until you check for easements and encroachments. Learn how to spot hidden property line issues that can ruin your investment.
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I once had a client—let’s call him Bob—who bought a stunning property with a massive backyard. He had big dreams: a heated swimming pool, a cabana, maybe even a pizza oven. He skipped the land survey because the fences “looked right” and he wanted to save $500.
Six months later, the excavators arrived to dig the pool. They hit a gas line.
It turned out that a massive utility easement ran right through the middle of his “dream backyard.” He couldn’t build the pool. In fact, he couldn’t build anything permanent there. The fence line he trusted? It was actually three feet onto the neighbor’s property. Bob was left with a backyard he couldn’t use and a legal mess he didn’t want.
This is the nightmare scenario. When we fall in love with a house, we look at the granite countertops and the hardwood floors. We rarely look at the invisible lines that dictate what we actually own. That is why understanding easements and encroachments is arguably more important than the home inspection. One is a repair bill; the other is a permanent restriction on your rights.
If you are about to sign a contract, you need to put down the paint swatches and pick up the title report. Here is the unvarnished truth about easements and encroachments and how to spot them before they become your problem.
What is an Easement? (The “Permission Slip”)
In simple terms, an easement is the legal right for someone else to use your land for a specific purpose. You still own the dirt, but you have to share it.
Most easements and encroachments you encounter will be boring and necessary. For example, the power company almost certainly has a utility easement running along the back or front of your lot. This allows them to enter your yard to fix a downed line without asking your permission. You can’t lock them out.
However, some easements are more intrusive.
- Access Easements (Right of Way): This happens when a neighbor’s property is “landlocked” (has no road access), and they have the legal right to drive through your driveway to get to their house.
- Conservation Easements: These prevent you from cutting down trees or developing certain parts of the land to protect nature.
While necessary, these easements limit what you can do. You generally cannot build a structure (like a garage or a deck) on top of an easement. If you do, the easement holder can legally force you to tear it down at your own expense.
What is an Encroachment? (The “Trespasser”)
If an easement is a permission slip, an encroachment is a violation.
An encroachment happens when a neighbor’s structure—be it a fence, a shed, a driveway, or even the eaves of a roof—crosses the property boundary onto your land.
Unlike easements, which are usually recorded in public records, encroachments are physical realities that often go unnoticed for years. I’ve seen cases where a neighbor built a garage two feet over the property line twenty years ago. Everyone assumed it was fine until the new buyer ordered a land survey.
When dealing with easements and encroachments, encroachments are the wild card. They can lead to expensive legal battles, “quiet title” lawsuits, or the loss of your land through something called adverse possession.
Why You Must Check Before Closing
You might think, “Who cares if the fence is off by six inches?”
You should. Easements and encroachments are “clouds” on the title. When you go to sell the house in five years, the next buyer’s lender might refuse to fund the loan until the issue is fixed. You are inheriting a legal headache.
Furthermore, easements and encroachments affect your property value. If you are paying for 0.5 acres, but a neighbor is using 0.1 acres of it for their vegetable garden, you are overpaying.
The First Line of Defense: The Title Search
When you go under contract, a title company will perform a title search. They dig through county records to find every deed, lien, and recorded document associated with that plot of land.
This report will list all recorded easements and encroachments.
- Read the “Exceptions” section: This is where the title company tells you what they won’t insure. If you see “Easement to the County for drainage,” go look at the map. Is that drainage ditch right where you want to put a swing set?
However, the title search has a blind spot. It only shows what is written down. It won’t tell you if the neighbor’s new shed is sitting on your lawn. For that, you need eyes on the ground.
The Ultimate Truth Teller: The Survey
I cannot stress this enough: Get a professional land survey.
A survey is a drawing created by a licensed professional that maps out the exact legal boundaries of the property. It will show you exactly where the house sits in relation to the lot lines. It is the only definitive way to identify easements and encroachments that aren’t obvious to the naked eye.
I remember a deal in a historic district where the survey revealed that the entire driveway of the house my client was buying actually belonged to the neighbor. There was no recorded easement. If the neighbor decided to put up a fence, my client would have had nowhere to park. That survey saved him $400,000.
Dealing with “Friendly” Encroachments
Sometimes, you find easements and encroachments that seem harmless. Maybe the neighbor’s rose bushes cross the line, or a retaining wall is slightly off.
If the encroachment is minor, you don’t always have to blow up the deal. You can ask the seller to get an Encroachment Agreement. This is a document signed by both neighbors that acknowledges the issue. It might say, “Yes, the fence is on my land, but I’m allowing it to stay for now. This does not mean you own the land.”
This protects you from adverse possession claims later. It turns a hostile trespass into a friendly license.
The Nightmare: Adverse Possession
This is the scary part of easements and encroachments. In many states, if someone uses your land openly and without permission for a certain number of years (often 10 to 20), they can legally claim ownership of it.
If you buy a house where the neighbor has been mowing a strip of “your” grass for 15 years, and you don’t say anything, you might legally lose that strip of land forever. Spotting these issues early allows you to interrupt that timeline before it becomes permanent.
Negotiations: Who Pays to Fix It?
If your survey reveals significant easements and encroachments, who fixes it?
Ideally, the seller. You can ask them to:
- Remove the encroachment: “Tell the neighbor to move their shed before we close.”
- Lower the price: “Since I’m losing 5% of the yard to the neighbor’s fence, I want a 5% price reduction.”
- Obtain an easement: If the driveway crosses the line, force the seller to pay for a recorded access easement so you have a legal right to use it.
Do not inherit the problem. Once you sign the closing papers, those easements and encroachments become your problem to solve.
Real-Life Example: The “Floating” Deck
I had a listing a few years ago where the seller had built a beautiful, elevated deck. It was a major selling point. During the buyer’s due diligence, the survey showed that the deck hung three feet over a utility easement.
The power company had the legal right to demand the deck be torn down at any moment to access the lines. The buyer walked away. The seller eventually had to pay $5,000 to cut the deck back before he could sell the house. If the buyer hadn’t checked for easements and encroachments, they would have bought a house with a deck destined for the chainsaw.
When to Walk Away
Not all property issues are fixable. You should consider walking away if:
- An easement runs directly under the footprint of the house (this is rare but disastrous).
- A neighbor refuses to sign an encroachment agreement regarding a major structure (like a garage).
- The title report shows “unrecorded easements” that are vague or undefined.
Your home should be your sanctuary, not a battleground. If the easements and encroachments look like they will lead to years of litigation, there are plenty of other houses on the market.
FAQ Section
1. Can I build a fence on an easement? Usually, yes, but with a catch. If you build a fence across a utility easement, the utility company has the right to tear it down if they need to access the pipes or wires. They generally will not pay to replace it. You build at your own risk.
2. Does title insurance cover encroachments? Standard title insurance usually protects you against recorded easements and encroachments that the title company missed in their search. However, standard policies often have “survey exceptions,” meaning they won’t cover things a survey would have shown (like a fence). You often need to buy “extended coverage” to be protected against survey-related issues.
3. How do I know where my property lines are without a survey? You can look for “survey pins” (iron rods driven into the ground at the corners of the lot), but these can move or be buried over time. The only 100% accurate way is to hire a surveyor. Using a phone app or a tax map is just a guess.
4. Can a neighbor claim my land if they put a fence on it? Yes, through adverse possession. If the fence stays there for the statutory period (e.g., 10-20 years) and you don’t object, they can sue for the title to that land. This is why identifying easements and encroachments immediately is crucial.
5. Is a “Right of Way” the same as an easement? Yes, a Right of Way is a specific type of easement that grants passage. It allows someone (or the public) to travel across your land, but they don’t own it.
Conclusion
Buying a home is emotional, but owning a home is legal. The physical walls of the house are important, but the invisible legal walls—the easements and encroachments—are what define the true value of your investment.
Don’t be like Bob with the swimming pool. Spend the money on the survey. Read the boring title report. Ask the hard questions about that fence that looks a little crooked. Because when it comes to property rights, what you don’t know can hurt you.