What is Encroachment?

The Legal Information Institute at Cornell University defines an encroachment as “an unauthorized intrusion onto a neighboring property through the creation or extension of a physical structure (including flora) above or below the surface of land.”  This article will explore examples of encroachment to help better understand what it really is in practice.

Key Takeaways

Examples

A very common example of a possible encroachment, one so common, in fact, that most of us have experienced it, whether it has been on our property or on a property we have visited, is an overhanging tree branch. Let’s say one neighbor has a tree with low hanging branches, such as a weeping willow, that stretch out beyond their property line and hang over the side of their neighbor’s fence. These branches and their foliage can be considered encroachments.  

But there is an important factor at play here: this would only be considered an encroachment if the neighbor who owns the tree on their side of the yard, placed it there, right up against their neighbor’s fence, without their approval, and the branches overhang onto their side. This will be an encroachment if the tree owner has placed that tree there when it hasn’t been there before. If the tree was already there when the parties moved in, this isn’t technically an encroachment because there was no active element of creating the encroachment.

Now let’s take it a step further. Imagine the branches on this tree are so big, so bushy, and stretch so far that they actually block their neighbor from being able to walk along that side of their fence because the walkway is overtaken by the branches. The crucial thing here, is, that Illinois law allows for property owners to trim the branches and other types of foliage that hangs over onto their property.  

The neighbor who is prevented from walking along their fence, in our example, can simply trim back the branches which are in their way. They cannot, however, trespass onto their neighbor’s property to do so. They can only trim from within their property line and only up to where their property line starts along the path of the branch. They can’t, for example, stand on a ladder on their side of the fence with a long lopper tool and cut the whole side of branches off from where they start on the tree trunk in their neighbor’s yard. Any portion that does not touch their property is off limits to them.  

So, what we can take from this example is that, if a neighbor has a tree with branches hanging into your yards, you can’t really call it an encroachment if you have the ability to trim those branches back from your side of the yard. And if your next door neighbor has not tried to prevent you from doing so, nor have they actively created the situation in which the branches start to hang over onto your yard, you will not have a basis for calling this a true legal encroachment. That is part of what makes the law so tricky, in general, is the little details which can change the nature of the situation from a legal perspective.  

The example above is a rather minor encroachment, not only because it may not realistically cause you any problems but also because you have a legally permissible remedy available to you in the option to trim any greenery back off of your property. You can, and ideally should always try to first, talk with your neighbor and request that they either remove the greenery or trim it from their side if the property line. It is always advisable to try to have a friendly neighborly exchange, or at least attempt a negotiation with your neighbor before you try to pursue any legal action.  

Some examples of more major encroachments include new construction by your neighbor which spills onto your property. Let’s say your neighbor builds a new archway for their vines, and it straddles your property line. This is an encroachment. Let’s say they build a new porch, and the awning is so large that a portion of it hangs over your property and obscures the sun from your adjoining flower beds. This is an encroachment which is actually causing damage to your property by not only literally being in your property and preventing you from using that space but also by ruining your landscaping.  For more specific examples, read our article What to do About Encroachment in Indiana.

The Illinois Compiled Statutes definition of an encroachment is below:

If any portion of the common elements encroaches upon any unit, or if any unit encroaches upon any portion of the common elements or any other unit as a result of the construction, repair, reconstruction, settlement or shifting of any building, a valid mutual easement shall exist in favor of the owners of the common elements and the respective unit owners involved to the extent of the encroachment. A valid easement shall not exist in favor of any owner who creates an encroachment by his intentional, wilful or negligent conduct or that of his agent.

So, as you can see, the important portion of this regulation relates to intent and actual action. If there would be an encroachment but it was not done intentionally nor negligently, it is likely to be found to be permissible.  

Easement

The difference between an encroachment and an easement is that with an easement, there has been permission for the use of someone else’s land for a specific purpose. For example, you may have an easement to cross your neighbor’s property in order to get to the beach a couple of blocks away from your house. There may be an easement which allows one property owner to drive the length of their neighbor’s driveway to get to their own driveway. There are many scenarios in which an easement may exist, but the main difference, again, is the permission factor. If it has been agreed to, it is not an encroachment but rather a legally recognized easement.  

In Conclusion

An encroachment may feel like a major nuisance. It is important to try to work it out with your neighbors before taking legal action. In some cases, what would otherwise be considered an encroachment may actually be an easement. Do your due diligence to figure out what you are actually dealing with, and once you’ve got that sorted, give us a call if needed.