If you have seen popular US sitcoms, you might have come across a trope about how the neighbour's tree hangs over the protagonist’s driveway. Our favourite TV shows have different approaches to this dilemma. Some show an adjusting protagonist who allows the tree to continue to hang over their driveway and others show a vengeful man who cuts down the whole tree, all while making you laugh.
However, this is a major issue outside of the sitcom universe as well.
When one of your neighbours’ lives starts slipping into your property lines, you have to deal with this issue and make it quick.
What Is Encroachment?
You pay for every square foot of your property, and that too is a hefty amount. Thus, you should get to enjoy every square foot you pay for as well. However, sometimes, intentionally or unintentionally, your or your neighbour might construct a little over your property line or just surpass it by any means. This is known as encroachment.
When a property buyer is in the process of getting a property transferred to them, or getting their mortgage approved, a survey of the property is done. This survey reveals many things, however, it most importantly reveals the property lines. This is the boundary within which everything is owned by the person buying the property.
Sometimes, a neighbour might build a little over their property line and into your property. They might do it by error or intentionally just to have a larger space. The example of the tree used earlier in this article is also an example of unintentional encroachment.
However, there are times when the passing of the boundary lines is done with the understanding of both the property owners. In such a case, a mutual understanding is achieved as to how far over the boundary of one’s property they are allowed to build. Such a case is called Easement. Let’s go back to the example of the tree hanging over your neighbour’s property. In such a situation, your neighbour might allow the same explicitly. This will then become a case of an easement.
How To Deal With Encroachment Outside The Court
As mentioned earlier, encroachment might be intentional or unintentional. In both cases, property owners often like to solve the issue outside the court. There are a few ways a mutual decision can be made regarding the encroachment on your property, without going the legal route:
1. Selling your property might be an option for those who have exhausted any mutual decision options with their encroaching neighbour. Once you sell the property, you will be able to get the worth of your complete property size without having to deal with the encroacher.
2. Another selling option is to sell both the properties, yours and the encroacher’s and divide the sale amount as per the correct share of both parties. You would require expert intervention in such cases.
3. Another scenario where expert intervention will be required is if you decide to go through mediation. In this scenario, both parties will sit down together and come up with a solution that compensates the party whose land has been encroached on.
4. You can also receive financial compensation from the encroacher in the form of rent for the area they are using.
The Legal Approach To Dealing With Encroachment
Laws Against Encroachment
1. As per Section 442 of the Indian Penal Code and the Law of Torts, trespass is a punishable offence. For legal purposes, encroachment is viewed the same as trespassing on private land and is punishable as per the above-mentioned laws.
2. There are three types of trespass:
Of person: Restricting the rightful owner from doing something he could previously do.
Of chatter: Disturbing the rightful owner by using the movable property that belongs to the owner.
Of property or land
3. An order of Injunction might be passed by the judiciary to stop or restrain the encroacher temporarily or permanently.
4. After evaluating the current value of land and the proportion that has been encroached, the judiciary may order the encroacher to pay monetary compensation.
Legal Solutions To Encroachment
The first step that you will be required to take in case your property is being encroached upon is to hire a lawyer. The lawyer will then generate paperwork that proves you’re the rightful owner of the property that is being used by someone else. This is known as a ‘quiet title’ action.
Once this is done, you can then sell your property.
If you do not wish to sell the property, your lawyer will then proceed with ‘ejectment action’ which will lead to the encroacher being legally tried for ‘adverse possession’ or allowed limited use of the property called ‘prescriptive easement’.
Tips To Prevent Encroachment
As it is commonly known, prevention is better than cure. Thus, if you have just bought land or property, it is better to ensure that it doesn’t get encroached instead of getting rid of the encroachment later.
Here are a few things you can do to prevent your property from getting encroached on.
1. Fence your property properly to ensure the property line is marked.
2. Give friends or family living nearby power of attorney in case you’re an NRI.
3. Hire a caretaker that can either live on the property or make regular visits to ensure your property has not been encroached on.
4. Hire a security guard, with the proper and necessary documentation, to look after your property.
5. Renew your lease and rent agreements timely while ensuring all legal proceedings have been undertaken correctly.
6. Make sure you do a thorough background check and police verification of tenants that approach you regarding your property.