One of our favorite types of disputes of late are easement disputes involving permanent encroachments on a neighbor’s land. These disputes come in all types of forms – retaining walls, driveways, patios, trees, fences- you name it and we have probably seen it. Ultimately, these disputes wind up involving some variation of claims for trespass, nuisance, prescriptive easements and equitable easements.
What many non-real estate attorneys fail to realize, unlike our real estate attorneys at Schorr Law, is that there is a well developed legal precedent that says that an encroacher cannot maintain a permanent structure and get a prescriptive easement over another’s land because the encroaching structure amounts to exclusive use and easement are non-exclusive in nature. That said, when attorneys know this rule they typically shift the focus of their argument to a claim for an equitable easement. An equitable easement differs from a prescriptive easement in that the court is required to balance the hardships to the parties and determine the burdens or benefits of allowing the encroachment to remain in place. If the court finds that after balancing the equitities that fairness dictates that the encroachemnt should remain in place, then the court will generally require the encroaching party to pay the non-encroaching party for some measure of the use of the property. When cases get to this stage ultimately the cost of maintaining the encroachment becomes a battle of the experts.
For more information on easement disputes, permanent encroachments, equitable easements and prescriptive easement diputes contact the real estate attorneys at Schorr Law. We enjoy easement disputes and have the experience and knowledge of the law necessary to advance your position in an encroachment/boundary dispute.
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