Whenever a home is about to change ownership, a thorough title search will include a property survey to determine the property lines, including the presence of any encroachments or easements. While both terms refer to use of the property by someone other than the owner, they are different in meaning and scope.
Encroachments are unpermitted intrusions onto the land of another – such as a large tree branch hanging over the fence, or the fence itself built a foot or two over the property line. Whether intentional or by mistake, and even if the encroachment doesn’t bother the new owner, it can be problematic in ensuring clear title for the purpose of title insurance. It may even impact the new owner’s homeowner insurance liability if someone is injured by an encroaching item, such as that overhanging tree branch breaking off and injuring someone.
Minor encroachments – say some shrubs that have overgrown the property line – rarely cause an issue because they can easily be trimmed or removed. However, a major or structural encroachment, such a neighbor’s garage or driveway that extends across the property line, can lead to legal disputes and other consequences. In rare cases, if the structural encroachment is severe enough, the new owner may need to sell that portion of the property to the offending neighbor or file a lawsuit to have the encroachment removed.
Easements, on the other hand, are permitted intrusions onto the property, such as a utility company’s right to enter the property to perform maintenance duties, or even a neighbor’s right to drive across part of your property to access a public road that cannot be accessed any other way.
In other words, unlike encroachments, easements are legally granted rights to use another person’s land for a specific purpose.
While easements are rarely an issue, it’s a good idea for homebuyers to safeguard their property rights by seeking legal advice regarding a major encroachment.