Adjacent Owner Issues - Part 1 - Chapters 10-12

Question 1

Determine whether an encroachment exists on a parcel of real estate

Answer 1

An encroachment is an improvement on real estate, such as a building, fence, driveway or tree, which extends onto real estate belonging to another person without their consent. When an encroachment is made in good faith, without knowledge, owners are not entitled to an injunction forcing the removal of the encroaching subject.

An owner needs to act within the THREE YEAR period of the statute of limitations to recover money losses unless the damage from an encroachment is Progressive overtime. The limitation period does not run from the discovery of the encroachment, but from the date the encroachment was created.

An owner seeking to terminate an encroachment or recover their money losses is generally subject to a ____three-year___ statute of limitations running from the commencement of the encroachment.

Question 2

Understand and apply the remedies available to an owner whose property is burdened with an encroachment

Answer 2

Once an encroachment has been determined, the remedies available to the owner include:
** an injunction ordering removal of encroachment or ** money losses for the diminished value of the property.

An owner is entitled to terminate or prevent an unauthorized intrusion onto their real estate. However, when the cost of removing an encroachment far exceeds the damage inflicted on the burdened owner, the owner may be awarded money losses, called balancing hardships.

An owner needs to act promptly to enforce their right to remove the encroachment or receive compensation for lost value when a neighbor’s improvements encroach on their property.

Question 3

Identify whether an encroachment was created by a neighbor in good faith

Answer 3

An encroachment can be kept on a neighbor’s property when:

• the encroachment was unknown and unintentional.
• the square footage of the owner’s property affected by the encroachment is minor
• the cost to remove the encroachment far exceeds the monetary loss to the owner if the encroachment were allowed to continue.

In these cases an owner cannot obtain an injunction, which is a court order, forcing the removal of the encroachment.

Question 4

encroachment

Answer 4

An ENCROACHMENT is an improvement on one parcel of real estate which extends onto real estate owned by another.

Question 5

continuing nuisance

Answer 5

A CONTINUING NUISANCE is an ongoing nuisance that can be entirely eliminated by those adversely affected by the activity or condition.

Question 6

trespass

Answer 6

A TRESPASS is any wrongful and unauthorized entry onto real estate in the possession of another. Any encroachment qualifies as a nuisance, be it a permanent or continuing nuisance, since the nuisance is broadly defined as any obstruction of another’s use and enjoyment of their real estate. An encroachment is also a trespass when it actually rests on the ground of the neighbor’s property.

Question 7

permanent nuisance

Answer 7

A PERMANENT NUISANCE is a nuisance which cannot be abated at a reasonable cost and by reasonable means.

Question 8

balancing hardships

Answer 8

BALANCING HARDSHIPS is the awarding of money to an owner to compensate for lost use of their property burden with an encroachment.

Question 9

good faith

Answer 9

GOOD FAITH is acting innocently and without knowledge of negative effects to someone else. The good-faith requirement prevents an intentional exploitation of the balancing hardships rule.

Question 10

equitable easement

Answer 10

An EQUITABLE EASEMENT is an easement granted to a neighbor allowing them to maintain an improvement encroaching on another’s property. Further, the neighbor needs to compensate the owner for the rental value of the Lost use of their property. The easement lasts for the lifetime of the encroachment.

Question 11

laches

Answer 11

LACHES are an unreasonable delay which bars pursuit of a claim. In addition to barring an owners relief for an encroachment on their property due to the statute of limitations, an action seeking money losses or an injunction against an encroachment may be barred by the equitable doctrine of laches, also called prejudicial delay or detrimental reliance.

A property owner loses their right to enforce a removal of an encroachment or recover money against the encroaching neighbor when the owner delays in making the claim, causing the neighbor to rely on the owners acquiescence to their detriment. Finally an owner who allows a known encroachment on their property to continue for over 5 years risks losing property rights through a prescriptive easement or adverse possession since the adverse use of the owner’s property by the encroaching neighbor is known to the owner and continuous. The land owner needs to act promptly to enforce their right to remove the encroachment or receive compensation for lost value when neighbors improvements encroach on their property.

Question 12

Identify the different types of trespass on property

Answer 12

A trespass is any wrongful and unauthorized entry onto real estate in the possession of another.

A trespass does not require the trespassers direct physical presence on the property. A trespass may result from an indirect entry into another’s property, sometimes called a trespass on the case. For example one may be liable on a trespass for losses caused by activities such as:

• depositing dirt or debris on another’s property
• leaving toxic waste on another’s property
• leaving personal property on real estate belonging to another
• diverting a river or surface water across another’s property
• starting a fire and negligently allowing the fire to move on to a neighbor’s property
• allowing ones animals to wander across another’s property.

A trespasser incurs civil liability for the monetary amount of any losses or injury caused to the occupant’s person, real estate or personal property. When no injury has occurred, the occupant may only recover nominal money losses from the trespasser.

Question 13

Understand the remedies a rightful occupant of property has against trespassers

Answer 13

A trespasser may incur criminal liability if they do not leave when requested since the trespass becomes a misdemeanor. When a trespasser does not leave when requested, the owner may recover possession of their property through a court action, except when the trespasser is a transient occupancy who failed to depart as agreed. The type of action brought to recover property depends on the type of possession held in the property.

Every property owner needs to take reasonable precautions to prevent injuries to others on their property, since they are liable for injuries to others, even trespassers, caused by unsafe conditions on the property. The ownership liability applies whether the injured person is a trespasser or an invited guest on the owner’s property.

When allowed to continue long enough without interruption, a trespass matures into a property right through prescription. Prescription is a process for acquiring property rights to use another’s property, such as an easement, through adverse use hostile to the rights of the owner.

A trespasser can acquire title to the entire property by adverse possession when they openly maintain exclusive possession of the property as a trespasser for a period of five years and pay all property taxes. One safeguard against adverse possession is to Grant the wrongful occupant permission to use the property. However, merely granting permission does not always prevent adverse possession. For example when possession of a property is based on color of title, meaning the occupant has a deed which is defective for some reason and a good faith belief they own the property, granting permission does not affect a claim for adverse possession.

The most prudent remedy against a trespasser seeking to establish adverse possession is an action for ejectment. Conversely, when the trespasser occupies under color of title, a quiet title action is required to clear title of the cloud created by the color of title.

Question 14

trespass

Answer 14

A TRESPASS is any wrongful and unauthorized entry onto real estate in the possession of another. Thus, a trespass is fundamentally an interference with another’s possession of real estate. It is distinct from any interference with title or an ownership interest.

The most prudent remedy against a trespasser seeking to establish adverse possession is an action for ejectment.

Question 15

nominal money losses

Answer 15

NOMINAL MONEY LOSSES are monetary recoveries when no injury has occurred. An owner may bring an action for trespass against a trespasser even when the trespasser caused no actual injury by their presence on the owner’s property. No injury has occurred, the owner may only recover nominal money losses from the trespasser. Nominal money losses are awarded when a wrong has taken place but has not resulted in a money loss.

Question 16

actual money losses

Answer 16

ACTUAL MONEY LOSSES are monetary losses recovered for injury to the real estate, lost use of the property, personal injury, or injury to the occupants personal property also called damages. To recover actual money losses for a trespass, a rightful occupant needs to sustain a real, actual loss of money.

Question 17

misdemeanor

Answer 17

A MISDEMEANOR is a lesser crime punishable by a fine and or county jail sentence. In addition to liability for property damages, a trespasser may also incur criminal liability. Trespassing becomes a misdemeanor when the trespasser:

• refuses to leave the property on foot or in a vehicle when requested by the owner, the owner’s agent, a person in lawful possession of the property or a law enforcement officer acting on a request from the person entitled to possession
• enters and occupies the property without the rightful owners consent
• refuses to leave a transient occupancy establishment (hotel, motel, vacation property) on the request of the owner or manager
• enters a private dwelling
• enters industrial property - such as an oil field, a gas or electric plant or a railroad yard (were posted signs forbid trespassing.)

A crime is not committed by merely entering another’s property, except when the property is a private residence or posted industrial property.

Question 18

ejectment

Answer 18

EJECTMENT is a civil action to recover possession or title to land from someone wrongfully in possession. The action to recover possession of property from a tenant in default on their lease obligations is referred to as an unlawful detainer (UD). In the case of a trespasser occupying property, the legal remedy is an ejectment action. Ejectment is similar to an unlawful detainer but has less stringent proof of trespass requirements. The trespasser in an ejectment action, unlike the tenant in a unlawful detainer action, never had legal possession of the property for an owner to have the trespasser legally removed. In an action to eject a trespasser, an owner or other occupant needs to prove they have a superior right to possession of the property. The owner May then obtain a court order for the removal of the trespasser from their property, called a writ of possession. The court order is carried out by the sheriff, not the owner.

Question 19

prescription

Answer 19

PRESCRIPTION is a process for acquiring property rights to use another’s property, such as an easement, through adverse use hostile to the rights of the owner. An adverse user of real estate, hostile to the owners rights, is a trespasser. When allowed to continue long enough without interruption, a trespass matures into a property right through prescription.

An owner needs to take steps to avoid the risk of a trespasser establishing permanent prescriptive rights on their property. The solutions are:

• Grant the trespasser a revocable right to use their property. When its owner give permission for someone to use their property, the use is not adverse, thus a prescriptive right to use is not established.
• an owner may post signs on their property stating their right to pass is by permission, subject to revocation and the control of the owner.
• to best protect their property rights, an owner needs to record a notice stating permission to use their property is revocable.

Question 20

adverse possession

Answer 20

ADVERSE POSSESSION is a method of acquiring title to real estate owned by another by openly maintaining exclusive possession of the property for a period of 5 years and paying all property taxes. Note: a trespasser who occupies property without the consent of the owner may be ejected by a court order at any time and charged with a misdemeanor. However, a trespasser can acquire title to the entire property by adverse possession when they maintain exclusive possession of the property as a trespasser for a period of 5 years. To establish title by adverse possession, the trespassers possession needs to be open and known to the owner, and the trespasser needs to pay all property taxes.

To safeguard against adverse possession an owner should:

• Grant the wrongful occupant permission to use the property
• granting permission however does not always prevent adverse possession. For example when possession of a property is based on color of title – meaning the occupant has a deed which is defective for some reason and a good faith believe they own the property - granting permission does not affect a claim for adverse possession.
• therefore, the most prudent remedy against a trespasser seeking to establish adverse possession is an action for ejectment. conversely, when the trespasser occupies under color of title, a Quiet Title action is required to clear title of the cloud created by the color of title.

Question 21

Identify what constitutes a nuisance per se

Answer 21

A nuisance per se is any activity specifically declared by Statute to be a nuisance. Conversely, when an activity is not a nuisance per se, a balancing of the rights of neighboring Property Owners is applied to determine whether a nuisance exists.

Question 22

Apply the balancing of the rights of neighboring property owners to determine whether a nuisance exists

Answer 22

A nuisance is anything which is offensive to the senses, injuries to health or obstruct the use of property. A nuisance may be classified as public or private. A public nuisance effects an entire segment of the public and is the state or local government responsibilities to stop. An owner may take actions to reduce or end a private nuisance affecting their property when they are able to do so without creating a disturbance of the peace, called self-help abatement.

Question 23

Distinguish between a nuisance and trespass

Answer 23

Nuisance and trespass are closely related. The two categories overlap since both involve injury to or interference with the property rights of another. The distinction is based on whether a physical entry onto another property occurs. Trespass requires a physical entry on another’s property which may be direct or indirect, for example, the trespasser may either personally enter the property or deposit materials indirectly, such as dirt and debris from construction activity. In contrast, a nuisance is an outside interference with an owners or tenants use and enjoyment of their property resulting from a condition or activity which physically remains outside the property.

Thus, trespass is based on an interference with the possession. A nuisance is an interference with the enjoyment of property since it affects the senses of the occupants.

Note the distinction between nuisance and trespass does not mean the categories are mutually exclusive. Nuisance is broadly defined by Statue as anything which is injurious to health or obstruct the use of property, regardless of whether the condition exists on or off the affected property. Thus, an invasion of property which qualifies as a trespass is also a nuisance when the trespass rises to an unhealthful or offensive condition.

Question 24

Understand the different remedies available in the instance of a permanent or continuing nuisance

Answer 24

The type of money losses an owner may recover for property damage caused by a nuisance depends on whether the nuisance is permanent or continuing.

For permanent nuisance, the owner may be entitled to money losses based on the diminished value of the owner’s property caused by the nuisance.

Recovery for a continuing nuisance may not include lost property value since the nuisance can be entirely eliminated. The primary remedy for a continuing nuisance is an abatement to remove the nuisance or an injunction ordering the nuisance to be stopped.

Question 25

nuisance

Answer 25

A NUISANCE is an action which is injurious to health, offensive to the senses, or obstructs the use and enjoyment of surrounding property. An activity becomes a nuisance based on either:

• a statutory provision identifying conduct that is a nuisance per se or
• a balancing of the conflicting rights and interests of the neighboring property owners.

Question 26

nuisance per se

Answer 26

A NUISANCE PER SE is any activities specifically declared by Statute to be a nuisance. When activity is a statutory nuisance, it is ordered stopped by a court without proof of its harmful or offensive affect. The list of nuisances per se is wide and diverse, including:

• fences of excessive height unnecessarily exceeding 10ft, call spite fences
• the illegal sale of controlled substances
• fire hazards
• swimming pools which do not comply with statutory health and safety standards

Question 27

balancing of the rights

Answer 27

A BALANCING OF THE RIGHTS is a determination of whether a nuisance exists when an activity is not classified as a nuisance per se. To determine whether a nuisance exists when an activity is not classified as a nuisance per se, a balancing of the rights of neighboring Property Owners is applied. Weather in activity is a nuisance is determined on a case-by-case basis. An activity which is a nuisance in one set of circumstances may not be a nuisance in another depending on:

• the frequency and time of day of the activity
• the number of inhabitants in the area
• the injury or inconvenience caused to occupants of surrounding property by the activity.

Question 28

public nuisance

Answer 28

A PUBLIC NUISANCE is a nuisance affecting an entire segment of the public, such as the neighborhood. stopping public nuisance is the responsibility of state or local government authorities. Officials may seek to:

• Abate or enjoin the nuisance
• recover money damages
• bring criminal misdemeanor charges against the offender responsible for the nuisance.

Question 29

permanent nuisance

Answer 29

A PERMANENT NUISANCE is a nuisance which cannot be abated at a reasonable cost and by reasonable means. The money losses inflicted by a permanent nuisance are determined at the time the permanent nuisance is created.

Question 30

continuing nuisance

Answer 30

A CONTINUING NUISANCE is an ongoing nuisance that can be entirely eliminated by those adversely affected by the activity or condition. Losses inflicted by a continuing nuisance are limited to the actual injuries suffered prior to the termination of the nuisance.