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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 arriving at some accommodation that provides them with at least temporary permission makes more sense. Doing nothing invites trouble.
People who use property they don’t own are trespassers[I] unless either:
You can exercise control –and thus guard against a trespasser gaining rights—in either of two ways:
If the owner is willing to consider allowing the use to continue, there are three legal relationships to consider for providing permission: license, lease, and easement. This guide reviews briefly the characteristics of each.
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.
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.
Examples of Licenses in Model Documents
Permission for Encroachment
The Model Permission for Encroachment is a license agreement. It allows an encroachment to continue until the owner withdraws permission. The model document also features owner protections from claims pertaining to injury or property damage, a requirement that the encroacher comply with the law, and the termination of any rights the encroacher may have to claim adverse possession.[II]
Model Trail Easement Agreement
The Model Trail Easement Agreement provides, in addition to the grant of an easement for public access for trail use, a list of other activities that may be available to the public if—and only for so long as—the owner consents. The commentary to the model provides instructions for providing a license for these activities.
The following characteristics of a license are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:
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. The encroacher becomes a tenant.
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, the owner may not want to rely on the interpretation provided by the law.
The following characteristics of a lease are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:
The use rights granted by an easement are permanent, which is the key distinguishing feature from a license or a lease.
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.
The following characteristics of an easement are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:
[I] Property of another on someone else’s land (called an encroachment) is a trespass just like human activity on the land.
[II] The protections afforded the owner in the Model Permission for Encroachment are similar to those included in the Model Release Agreement. These risk-shifting tools are available at ConservationTools.org as are several guides addressing the topic of reducing and managing risk.
The Pennsylvania Land Trust Association produced this guide with support from the William Penn Foundation, the Colcom 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.
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.
© 2019 Pennsylvania Land Trust Association
Text may be excerpted and reproduced with acknowledgement of ConservationTools.org and the Pennsylvania Land Trust Association.