Easements and Encroachments: Hidden Legal Issues in Real Estate

10 September 2025

Real estate transactions can be exciting but also nerve-wracking. You've found the perfect property, secured financing, and are ready to move in—only to discover a legal issue lurking in the fine print. Two common yet often overlooked problems in real estate are easements and encroachments. These hidden legal snags can quickly turn property ownership into a headache if not properly understood.

So, what are easements and encroachments, and how can they impact your property rights? Let’s break it down in simple terms.

What Is an Easement?

An easement is a legal right allowing someone else to use part of your property for a specific purpose—even though you still own it. Think of it as sharing a slice of your land with someone else without giving up ownership.

Easements can be beneficial or frustrating, depending on the situation. For example, if your neighbor has the right to use your driveway to reach their house, it’s an easement. Utility companies also often have easements to run power lines or water pipes through private land.

Types of Easements

Easements come in different shapes and sizes. Let’s look at the most common ones:

1. Easement Appurtenant

This easement is tied to a property and transfers to future owners. Imagine two adjacent properties—one has no direct road access, so the owner has the right to cross the other property. This right stays with the land, even if ownership changes.

2. Easement in Gross

Unlike appurtenant easements, this one benefits an individual or entity rather than a specific property. Utility companies commonly hold these easements to install and maintain power lines, gas lines, or sewer systems.

3. Prescriptive Easement

This occurs when someone continuously and openly uses another person’s land without permission for a certain period (laws vary by state). Over time, they may gain the legal right to continue using the land. It’s kind of like "squatter’s rights" but for land use.

4. Easement by Necessity

If your property is landlocked (meaning there’s no legal road access), you might be granted an easement by necessity. Courts often enforce these easements to ensure access to public roads.

What Is an Encroachment?

An encroachment happens when someone’s property crosses into yours without permission. This is a big deal, as it can cause disputes between neighbors and even affect property value.

Encroachments might be accidental (think of a fence that’s a few inches over the property line) or intentional (such as a neighbor building a shed that extends onto your land). Regardless, they can lead to legal battles if not resolved.

Common Examples of Encroachments

- Overhanging branches – A tree from your neighbor’s yard extends into your property.
- Fences crossing property lines – A classic issue in boundary disputes.
- Sheds, driveways, or decks overlapping – A homeowner unknowingly builds part of their structure on a neighboring property.

Encroachments can start small but escalate quickly. If left unaddressed, they might even lead to a loss of property rights.

The Legal Implications of Easements and Encroachments

Both easements and encroachments can impact a property's value, usage, and marketability. Before buying or selling real estate, it’s wise to identify and resolve these issues.

How Easements Affect Property Ownership

Easements can be a double-edged sword—they provide necessary access but restrict how an owner can use certain parts of their land. For example, if a utility company has an easement on your property, you might not be able to build over that area.

Lenders, buyers, and even title insurers will carefully examine easements before approving a transaction. Some easements are minor, while others can limit development potential or cause legal disputes.

How Encroachments Can Create Legal Trouble

Encroachments can lead to:

- Property disputes – When a neighbor refuses to remove or modify a structure that crosses over property lines.
- Title issues – If a longstanding encroachment exists, it might affect property ownership records.
- Lawsuits – If neither party agrees on a resolution, legal action may be required.

In some cases, encroachments may turn into a legal adverse possession claim, where the encroacher can eventually gain ownership of the encroached land if certain conditions are met (varies by jurisdiction).

How to Handle Easements and Encroachments

If you’re dealing with one of these issues, don’t panic! There are ways to resolve them before they become full-blown legal nightmares.

1. Check Property Records

Before buying a home, review its title report, deed, or plat map. These records will indicate whether any easements exist. Hiring a property surveyor can help pinpoint boundary lines and potential encroachments.

2. Negotiate a Solution

For minor encroachments, having a friendly conversation with your neighbor can lead to an easy fix. They might move a fence or trim overhanging branches without legal action.

3. Draft an Easement Agreement

If an easement is necessary but not formally recorded, you can negotiate and draft a written easement agreement outlining its terms. This ensures clarity and prevents future disputes.

4. Request an Encroachment Agreement

When an encroachment is minor and doesn’t significantly impact property use, homeowners can establish a formal agreement allowing it to remain under certain conditions.

5. Seek Legal Help

For complex situations—especially disputes that can’t be settled amicably—it’s best to consult a real estate attorney. They can assess your rights and explore legal remedies such as filing for an injunction or requesting court intervention.

6. Consider Title Insurance

Title insurance can help protect buyers from unexpected easement or encroachment issues discovered after purchasing a property. It’s a small upfront cost that could save you thousands in legal fees down the road.

Conclusion

Easements and encroachments may not be the most thrilling part of real estate, but they’re critical to understand. These hidden legal issues can impact property rights, cause disputes, and even affect a home's value.

Whether you're a homebuyer, seller, or property owner, educating yourself on these matters will help you avoid headaches and legal trouble in the future. Before signing on the dotted line, always review property records, get surveys done, and consider seeking professional advice.

After all, real estate should be about securing your dream home—not dealing with unexpected legal tangles!