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Responding to Encroachment

Oust or Give Permission with Conditions

What should you do if a neighboring landowner encroaches on your organization’s property (e.g., builds a shed or extends their lawn) or otherwise uses the land without permission? Sometimes immediately booting them is the best answer; sometimes making an accommodation that provides them with at least temporary permission makes more sense. Doing nothing invites trouble.

Control or Risk Losing

People who use property they don’t own are trespassers[i] unless they have permission or can prove actual, continuous, exclusive, visible, notorious, distinct, and hostile possession (adverse possession) or use (prescriptive easement) of property for (in most cases) 21 years. Putting aside this archaic sounding legal standard. [II] if to a reasonable onlooker it appears that the trespasser is the true owner of the land, there is risk that the trespasser can legally gain rights to the land.

It is easy to avoid this risk. All you need to do is demonstrate control of your land. IF YOU DON’T DEMONSTRATE CONTROL, YOU MAY LOSE IT TO THE PERSON WHO IS USING IT WITHOUT YOUR CONSENT.

You can exercise control –and thus guard against a trespasser gaining rights—in either of two ways:

  1. Oust the trespassers (whether by means of a simple request or, in more challenging situations, with the assistance of the police, court action, or otherwise); or
  2. Give permission for the use. If permission is given, it’s no longer a trespass and the time counting towards ownership or easement by adverse possession ends.

If you are willing to consider allowing the use to continue, there are three legal relationships to consider for providing permission: license, lease, and easement. This guide briefly reviews the characteristics and how to use each of these. 

License: Permission Revocable at Any Time

A grant of a license to use real property provides the licensee the right to enter or occupy certain property for a specific purpose but only for so long as the owner has no objection. In other words, the owner may withdraw permission at any time for any (or no) reason.

Documentation

Give Permission in Writing

No formal agreement is needed to establish a license; a simple letter from the owner to the licensee will suffice. Not putting the license in writing is risky, because an encroacher might claim that the owner provided the encroacher with an oral lease—a permission not immediately revocable—rather than a license, which is revocable at any time. In Pennsylvania, a successful claim of oral lease may result in the unwanted use continuing for up to three years. Also, without evidence that the owner has exercised control, there is still risk of a claim of adverse possession.

Model License to Address Encroachment

WeConservePA’s Model Permission for Encroachment is a license agreement. It allows an encroachment to continue until the owner withdraws permission. The model document also features:

  • Protections for landowners against claims pertaining to injury or property damage
  • A requirement that the encroacher comply with the law
  • The termination of any rights the encroacher may have to claim adverse possession[iii]

Characteristics of a License

The following characteristics of a license are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:

  • Property interest. The license is not an interest in real property and, thus, not an encumbrance on title.
  • Exclusivity. A license is not exclusive. The owner can use the licensed area too.
  • Revocability. A license is revocable at any time.
  • Transferability. A license is not transferable. This includes both transfers to other persons by assignment and transfers to subsequent owners of a benefited property. For example, if a neighbor is given permission to maintain an encroaching fence on your property, the benefit of that license doesn’t accrue to a subsequent owner of the neighboring land.

Lease: Permission for a Time

If the owner is willing to give the encroacher permission to use the land for a specified minimum period of time and particularly if the encroacher will compensate the owner for this permission, they are looking at entering a lease (rather than license) relationship. With a lease, the encroacher becomes a tenant.

Documentation

A writing signed by both parties is highly desirable to establish, at the very least, the area being leased, the length of the lease, and the compensation to be paid to the owner. Consider including other items typically addressed in lease forms such as responsibility for the condition of the leased premises and the safety of persons and property. A prohibition on the tenant being able to assign the lease to another party without the owner’s consent and a right for the owner to terminate the lease if the tenant defaults are also important to include because, as outlined below, in the absence of such specificity, the law by default will favor the tenant in these matters.

Characteristics of a Lease

The following characteristics of a lease are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:

  • Property interest. The lease is an interest in real property and, thus, is an encumbrance on title. This means that if the owner transfers the property to another, the lease will still be in effect.
  • Exclusivity. The rights to occupy the leased premises are exclusive to the tenant. The owner has no right to enter or use the premises.
  • Revocability. The lease is irrevocable for the term.
  • Transferability. The lease is transferable. The tenant’s rights can be assigned to anyone without the owner’s permission.

Easement: Permanent Use

The use rights granted by an easement are permanent, which is the key distinguishing feature from a license or a lease.

Documentation

The grant of an easement is documented with the same formality as a deed and, to be enforceable against third parties, must be recorded in the public records just like a deed.

Characteristics of an Easement

The following characteristics of an easement are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:

  • Property interest. An easement is a property interest and, thus, creates an encumbrance on the land ownership interest.
  • Exclusivity. An easement is not exclusive. The owner can continue using the eased area so long as the use does not interfere with the exercise of the easement holder’s rights under the easement.
  • Revocability. The easement is not revocable. It is permanent and neither time-limited nor subject to termination by the owner.
  • Transferability. The easement is a freely transferable property right.

[I] An encroachment is a situation where a building, structure, or something else goes beyond the boundary of the owner’s land onto a neighbor’s property. It is a form of trespass.

[II] An exploration of adverse possession and prescriptive easements is outside the scope of this guide. To learn more, see the WeConservePA guide Adverse Possession in Pennsylvania.

[III] The protections afforded the owner in the Model Permission for Encroachment regarding liability for personal injury and property loss are similar to those included in WeConservePA’s Model Release Agreement.

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Experts

Pregmon Law Offices
610-834-7411
Patricia L. Pregmon offers more than 25 years experience in real estate law and has helped scores of clients find creative solutions to their land preservation goals.
WeConservePA (formerly known as Pennsylvania Land Trust Association)
717-230-8560
Loza has served since 2000 as executive director of the Pennsylvania Land Trust Association where he leads public policy initiatives, writes and edits technical guidance, and implements various assistance, training, and education programs to advance conservation.

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Acknowledgements

Patricia L. Pregmon, attorney at law, and Andrew M. Loza are the authors.

WeConservePA offers this guide thanks to support from the Colcom Foundation, the William Penn Foundation, and the Community Conservation Partnerships Program, Environmental Stewardship Fund, under the administration of the Pennsylvania Department of Conservation and Natural Resources, Bureau of Recreation and Conservation.

Disclaimer

Nothing contained in this or any other document available at ConservationTools.org is intended to be relied upon as legal advice or to create an attorney-client relationship. The material presented is generally provided in the context of Pennsylvania law and, depending on the subject, may have more or less applicability elsewhere. There is no guarantee that it is up to date or error free.