Encroachments in Texas: What Property Owners Need to Know
Property disputes can arise when a fence, driveway, building, or other improvement crosses a property boundary. These situations are known as encroachments, and they can create significant legal problems for Texas property owners, buyers, sellers, and investors.
An encroachment may be discovered during a property survey, before a real estate closing, while constructing improvements, or after a disagreement develops between neighboring property owners.
Understanding how encroachments can affect property rights may help owners address problems before they become more complicated or expensive.
Walter Law, PLLC assists Texas property owners, buyers, sellers, and investors with encroachment disputes and other real estate matters.
What Is an Encroachment?
An encroachment generally occurs when a structure, improvement, or other physical feature extends across a property boundary and onto neighboring property.
Encroachments may be intentional or unintentional.
In many situations, a property owner may not realize that an encroachment exists until a survey is completed or a dispute develops with a neighbor.
Common examples include:
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Fences crossing property lines
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Driveways extending onto neighboring property
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Buildings constructed across boundary lines
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Garages or sheds located partially on another property
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Retaining walls
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Landscaping features
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Swimming pools
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Decks and patios
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Roof overhangs
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Drainage improvements
Even relatively small encroachments can create legal complications involving ownership rights, property sales, and future development.
How Are Encroachments Discovered?
Many encroachments are discovered during a property survey.
A survey identifies property boundaries and may show the location of structures, improvements, easements, and other physical features affecting the property.
Encroachments may also be discovered when:
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A neighbor constructs a new fence
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Property is being sold
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A title company reviews the transaction
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Construction begins
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A property owner reviews older surveys
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A boundary dispute develops
Discovering an encroachment does not automatically determine which party is legally responsible or how the issue should be resolved.
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What Is the Difference Between an Encroachment and an Easement?
Encroachments and easements both involve the use of property, but they are different legal concepts.
An easement generally gives a person or entity a legal right to use another person’s property for a particular purpose.
An encroachment generally involves a structure or improvement that physically extends across a property boundary.
For example, a utility company may have a valid easement allowing access to part of a property. In contrast, a neighbor’s fence constructed several feet across the property line may constitute an encroachment.
Determining whether a particular use is authorized by an easement or constitutes an encroachment may require reviewing deeds, surveys, title documents, and other property records.
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Why Can Encroachments Become Serious Legal Problems?
Property boundary issues can affect ownership rights and create complications when property is bought, sold, developed, or financed.
An encroachment may:
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Interfere with the use of property
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Affect future construction plans
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Create title concerns
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Delay a real estate closing
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Lead to disputes between neighbors
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Affect the marketability of property
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Create questions involving adverse possession
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Result in litigation
Ignoring an encroachment does not necessarily make the problem disappear.
In some situations, delaying action may make resolving the dispute more difficult.
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What Should You Do If a Neighbor’s Fence Is on Your Property?
Fence disputes are among the most common types of encroachment issues.
Before taking action, property owners should consider obtaining and reviewing reliable information about the property boundary.
This may involve:
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Reviewing the property survey
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Examining deeds and title documents
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Reviewing subdivision plats
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Gathering photographs
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Reviewing communications between the property owners
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Obtaining a new survey if necessary
Removing or damaging a fence without first understanding the legal rights of the parties may create additional problems.
When a disagreement develops, consulting with a real estate attorney may help clarify the available options.
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Can an Encroachment Affect the Sale of Property?
Yes.
An encroachment discovered during a real estate transaction may raise concerns for buyers, sellers, title companies, and lenders.
Depending on the circumstances, the parties may need to address the issue before closing.
Possible solutions may involve:
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Removing the encroachment
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Negotiating an agreement
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Creating an easement
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Adjusting the property boundary
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Obtaining additional documentation
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Resolving the dispute through legal action
The appropriate solution depends on the nature and location of the encroachment and the rights of the parties involved.
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Can a Property Owner Force an Encroachment to Be Removed?
Possibly.
Whether an encroachment can be removed depends on the specific circumstances and legal rights of the parties.
Relevant considerations may include:
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The location of the property boundary
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How long the encroachment has existed
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Whether permission was previously granted
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Whether an easement exists
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The language of deeds and other documents
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Whether adverse possession or other legal claims are asserted
Some disputes can be resolved through negotiation, while others may require litigation.
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How Can Encroachment Disputes Be Resolved?
There is no single solution for every encroachment dispute.
Depending on the circumstances, potential resolutions may include:
Negotiation
Property owners may be able to reach an agreement addressing the encroachment without litigation.
Removal or Relocation
The structure or improvement causing the encroachment may be removed or relocated.
Easement Agreement
The property owners may agree to create an easement allowing the existing use to continue.
Boundary Agreement
In some circumstances, property owners may enter into an agreement addressing uncertainty regarding a property boundary.
Property Transfer
A small portion of property may potentially be transferred between owners, depending on the circumstances and applicable requirements.
Litigation
When the parties cannot resolve the dispute, court action may be necessary to determine property rights or obtain other legal relief.
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What Should You Know Before Calling a Real Estate Attorney?
Before contacting a real estate attorney about an encroachment, gathering the relevant documents and information may help the attorney evaluate the situation.
Helpful materials may include:
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The current property survey
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Older surveys
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The deed
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The title commitment
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Title insurance documents
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Subdivision plats
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Photographs of the encroachment
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Measurements or property descriptions
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Communications with the neighboring property owner
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HOA documents, if applicable
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Information about when the structure or improvement was built
You should also be prepared to explain when the encroachment was discovered, how long it may have existed, whether previous owners knew about it, and whether there is a pending sale, construction project, or other deadline.
The history of the property and the parties’ use of the land may be important when evaluating an encroachment dispute.
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Frequently Asked Questions About Encroachments in Texas
Is a fence over the property line considered an encroachment?
Potentially. If a fence extends beyond the legal property boundary onto neighboring property without authorization, it may constitute an encroachment.
Can I remove something that is encroaching on my property?
Property owners should be cautious about removing or damaging structures before understanding the legal rights of the parties. Consulting with a real estate attorney may help prevent additional disputes or potential liability.
Does an old encroachment automatically become legal?
No. The fact that an encroachment has existed for a long period does not automatically determine ownership rights. However, the length and nature of the property use may become relevant to certain legal claims.
Can an encroachment cause title problems?
Yes. Encroachments may create title concerns and complicate real estate transactions.
Will title insurance cover an encroachment?
Coverage depends on the specific title insurance policy, survey, exceptions, exclusions, and circumstances surrounding the claim.
What if I bought a property and later discovered an encroachment?
Reviewing the survey, title commitment, title insurance policy, deed, and closing documents may help determine the appropriate next steps.
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Learn More About Texas Real Estate Law
Encroachments often overlap with other issues involving property ownership, title, surveys, easements, and boundaries.
Explore our related Texas real estate law resources:
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Speak With a Texas Real Estate Attorney About an Encroachment
Encroachments can affect property ownership, development plans, real estate transactions, and relationships between neighboring property owners.
Addressing an encroachment early may provide more options for resolving the issue before the dispute becomes more complicated.
Walter Law, PLLC assists Texas property owners, buyers, sellers, and investors with encroachment disputes and other real estate matters.
Contact Walter Law, PLLC to schedule a consultation with a Texas real estate attorney.