Self-Help Removal Of Encroachments
Posted Aug 5, 2020
By Washington State Litigation Lawyer Andrew M. McKenzie
In a recent news story (see this video from Inside Edition: https://www.youtube.com/watch?v=FAxpCbUSmrk), a Maine man decided to cut his neighbor’s garage in half after learning from a survey that the garage encroached on the man’s property. It is a common misconception that just because records show land belongs to someone, that person has the unfettered right to remove unwanted encroachments. The law is more complicated than that, and engaging in self-help without appropriate legal analysis can expose you to liability. In Washington, when a building encroaches on a neighboring parcel, the right of the encroacher to maintain the encroachment is affected by a host of considerations. If the encroaching portion of the building has existed more than ten years without permission from the owner of the encumbered property, it may be able to remain under the doctrine of adverse possession, which would require the encroacher to establish that occupancy of the portion of encumbered property was open and notorious, exclusive, adverse or hostile, and continuous and uninterrupted for the ten year statutory period. But even when the elements of adverse possession have not been met, the encroacher may still be entitled to maintain the encroachment by relying upon a doctrine known as an easement “based on a balancing of the equities.” A court may consider the relative benefits and burdens for each property owner if an encroaching structure were removed versus not removed. A classic scenario would be where someone constructs an expensive structure which encroaches and cannot easily be relocated to eliminate the encroachment. The burden on the owner of the encumbered property is likely to suffer far less harm by allowing the encroachment to continue, compared to the loss suffered by the encroaching party if the encroaching portion of the structure were removed or destroyed. In such circumstances, if the court determines that the encroachment may remain, the court can award damages to compensate the owner of the encumbered property for the encroachment. Note, however, that this doctrine is not available to someone who intentionally encroaches. This is a sensible approach which guards against waste and against extortionate demands which might otherwise be encouraged by the owner of the encumbered property.
All of that is to say, you should consult a lawyer before engaging in self-help removal of an encroaching structure. If the encroacher could demonstrate a right to continue the encroachment, you may be on the hook for substantial damages. The lawyers at Beresford Booth can advise you on your property rights and help you formulate a strategy that maximizes your chances of a favorable result.
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