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Is an encroachment different than an easement?

QUESTION:

My husband and I have been looking for property in Cape Coral. Our real estate agent has mentioned that one property had an easement and another an encroachment. I thought that meant the same thing but my husband thinks they are different. Are they?

ANSWER:

The purchase of property has many benefits and sometimes a few burdens. The benefits and burdens of the previous owner pass to the new owner when the property is sold.

An easement is a right of use of land belonging to another. Rules were established under common law long ago to permit people who lived on adjacent ground to travel over someone else’s land to reach their property. This was like an informal road system, which has passed on to today. This is called "right of way," a form of an easement that provides people with the right to pass over your land and to have the reasonable use and enjoyment of your property, so long as it is not inconsistent with your use and enjoyment of the land. This is an access easement.

Two additional kinds of easements are utility easements and drainage easements. A utility easement is a right held by a utility company to put its utility lines on private property, usually for the purpose of providing service to that property. A drainage easement requires that a property owner not disturb a natural or man-made drainage pattern that crosses his land. Although ownership rights are reduced by these rules, society at large usually benefits.

An encroachment is an unauthorized entry upon the land of another. Common law created the action of trespass for injury to property when someone else has interfered with an owner’s property rights. It is possible that the real estate agent was advising you that a lawsuit was pending regarding the property mentioned.

Be sure to investigate all legal aspects of any property before purchasing. After purchasing, you might be held responsible for violation of zoning ordinances, environmental hazard cleanup or injuries on the property. For example, an uphill landowner may be responsible when his land slides onto a downhill property.

Despite the risks inherent in owning real property, most people agree that the benefits outweigh the burdens.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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