Understanding Encroachment Agreements
When you own property, you only have the right to build structures on your own land. While most people think this an obvious statement, many homes have encroachments onto neighbouring properties. Encroachment agreements remedy this situation but only to an extent. Read more about the risks and benefits of these agreements. If more questions or concerns occur to you after, connect with the real estate lawyers at Kahane Law Office in Calgary, Alberta.
What Is A Real Estate Encroachment?
An encroachment in the real estate context is any structure that is the property of one home but is built partially or entirely on a neighbouring property. At times, the neighbouring property’s owner is a utility company, City or municipality. Other times ownership of that property is a private individual. Lastly, encroachments sometimes exist where someone builds a structure on or onto a road allowance, right of way (overland drainage or utility) or easement. In these cases the structure is still situated on the owners land but the location is somewhere it is not supposed to be. The easiest way of seeing if something encroaches or not, is to view the Real Property Report or RPR, as they are also referred to. It is a drawing of the property, boundaries and structures.
Types Of Real Estate Law Encroachments
Any structure built on a property may encroach onto neighbouring properties or right of ways. Other times the structure itself is where it is supposed to be but part of it encroaches. For example, eaves troughs, overhangs, etc may extend out from a home, shed or garage and encroach onto somewhere it is not supposed to. In terms of the types of encroachments we see, they are many. For example, we see encroachment agreements dealing with:
- The house itself;
- Retaining walls;
- Party walls;
- Driveways; and lastly
- Eaves troughs.
Ways To Fix An Encroachment
There are several ways to fix an encroachment, however, depending on the structure that encroaches, an encroachment agreement is often the easiest and least expensive. The main ways that people fix encroachment issues include, for example:
- Move the structure;
- Remove the structure;
- Remove the portion of the structure that encroaches; and lastly
- Enter into an encroachment agreement.
Obligations Under An Encroachment Agreement
Not all encroachment agreements are the same. Many of them do include similar terms. For example, many encroachment agreements contain variations of the following terms:
If the structure injures or causes damage to the owner of the property it is built on (or anyone else), the owner of the structure accepts liable for those damages.
Requirement To Maintain
The party who owns the structure, the landowner of where the structure was supposed to be built on, has a positive obligation to maintain that structure. Depending on the structure this means that they need to keep it in good condition and repair.
No Right To Rebuild
In case the structure requires replacing (fire, age, deterioration, etc) no right exists to rebuild the replacement structure in the same place. Similarly if the landowner just wants to replace the structure, the obligation under the encroachment agreement is to build it on a location where it no longer encroaches.
Obligation To Remove
Almost all encroachment agreements include a provision that allows the party who allowed the structure to stay, to force its removal with 30, 60 or 90 days notice. As below, this creates risk for a person buying a property that includes an encroachment.
Risks Of An Encroachment Agreement
As stated just above, risks and liability exists when structures encroach onto neighbouring property (or rights of way, easements, etc). If a person purchasing a home sees an encroachment agreement registered on title, key due diligence includes reading that agreement to ensure they understand the terms. While we rarely see parties requiring the removal of an encroachment, the term that allows for it, put the buyer at risk. With a city or municipality, the risk of a notice to remove is low. It exists but is unlikely. With a private encroachment agreement, that risk increases based on the relationships that exist between neighbours.
How Real Estate Lawyers Help
Our team of real estate lawyers inn Calgary help clients in many ways. For example, we help:
- Draft private encroachment agreements;
- Negotiate Private agreements (as between neighbours);
- Facilitate Encroachment agreements with municipalities;
- Register agreements on title to the subject properties; and lastly
- Explaining the risks and obligations under these agreements.
Hiring An Encroachment Agreement Lawyer
We help with all aspects of encroachment agreements. Clients buying, selling, or dealing with any structure that encroaches often call for assistance. Finally, we provide most of these services on a reasonable flat rate basis. Due to our significant experience with real estate, we provide these services quickly and efficiently. Connect with us today for assistance. Call 403-225-8810 or email today to contact us.