Encroachment

Key Takeaways

• An encroachment is a physical intrusion: a structure or improvement that crosses a boundary onto land the owner does not hold.
• Encroachments are nonfinancial encumbrances, grouped with deed restrictions and easements rather than with liens, which secure money.
• Washington's seller disclosure statement asks directly whether there are encroachments, boundary agreements, or boundary disputes, so a known intrusion has to be disclosed.
• An encroachment shows up on a survey rather than in the recorded chain of title, because it is a fact about where a structure sits on the ground.

What It Means

An encroachment is a structure or improvement that sits, in whole or in part, on land belonging to someone else. A fence set three feet inside the neighbor's line, a garage corner, a retaining wall, a roof overhang, a driveway that swings wide: each is a physical trespass that continues as long as the thing stays there. Courses group encroachments with deed restrictions and easements as a nonfinancial Encumbrance, the kind that limits how land can be used without securing a debt against it.

An encroachment matters to a broker because it clouds title on both sides of the line. The neighbor whose land is being used has a claim to remove the structure or to be paid for the strip. The owner whose garage crosses the line has a defect the buyer's lender may refuse to accept. Neither party may know the intrusion exists, because a boundary is invisible until someone pays a surveyor to mark it.

Time works against the record owner. Left in place long enough and used openly, an encroachment can mature into an ownership or use claim, which turns a fence problem into a title problem. The cure is a Survey early rather than an argument late.

How It Works in Washington

Washington puts the question in the seller's own words. The seller disclosure statement required by RCW 64.06.020, the form brokers call Form 17, asks in its Title section whether there are any encroachments, boundary agreements, or boundary disputes. A seller who knows about the neighbor's shed over the line answers yes and describes it. Under RCW 64.06.020 the buyer then has three business days from delivery of the completed statement to rescind the agreement in writing.

Waiting it out does not work either, and it can backfire. RCW 4.16.020 allows ten years for an action for the recovery of real property, so an encroachment that stands and is used openly for a decade can become the foundation of an adverse possession or prescriptive use claim by the neighbor who built it. A boundary problem ignored for years is not a problem that disappears. It is a problem that changes owners.

Example

Ruben Ortega lists a 1962 rambler in Kent at $565,000. During inspection the buyer's agent notices the detached shop sits tight to the east line. A boundary survey costs the seller $1,850 and shows the shop slab crossing 2.4 feet onto the neighbor's parcel for 28 feet of its length, about 67 square feet in all.

The title company adds an exception for the encroachment, and the buyer's underwriter will not clear to close while that exception stands. Ruben and the neighbor sign and record a boundary line agreement, Ruben pays the neighbor $4,000 for the strip, and recording and legal work runs $600. Total cost to keep the sale together: $6,450. Had the Title question on the disclosure statement been answered truthfully in week one, the same fix would have been scheduled instead of scrambled.

Common Mistakes and Exam Traps

• An encroachment is physical, while an easement is a granted right of use. A neighbor's fence over the line is an encroachment, and a recorded right to cross the driveway is an easement.
• Encroachments are nonfinancial encumbrances. They belong with deed restrictions and easements, not with liens, which secure a debt.
• A title search by itself will not reveal an encroachment. It is found by a survey or an inspection, because it is a condition of the ground rather than a recorded document.
• An encroachment is not a nonconforming use. One crosses a property line, and the other conflicts with the zoning ordinance.