What is an Encroachment Agreement?
An encroachment agreement is recognized as a legally binding contract (i.e. a type of easement) in which a landowner of property comes to an agreement with a neighboring landowner concerning a building or structure that either: (a) violates building encroachments standard by its presence upon the land of the neighboring landowner, or (b) has encroached upon the land of the neighbor due to human error in its construction. Encroachment agreements are typically needed in one of two situations:
(1) A building or structure that was constructed or built on a relevant property line substantially violates building encroachment standards; or
(2) A fence, tree or shrub encroaches upon the land of an adjoining neighbor due to human error . The aforementioned type of encroachment may be accidental and not in bad faith …
Encroachments can take many forms, the most common example being final improvements that are constructed too closely to adjoined neighboring property. These type of encroachments include, but are not limited to:
- (1) A wall that is built on the property line;
- (2) Claiming ownership of another person’s land by inviting an adverse possession claim based upon exclusive, open, and continuous possession of the property;
- (3) Building a fence too near a property line;
- (4) Constructing a building or other structure from a deck to a fence too far across the applicable boundary line; and
- (5) Planting a tree or shrubs that violating demonstrated standards near a common boundary line.
Components of an Encroachment Agreement Template
What are the Key Elements of an Encroachment Agreement Template?
An encroachment agreement template is used by municipal departments and public agencies to establish a legally binding agreement between property owners and the municipality. Although each municipal department has its own template, the basic elements of an encroachment agreement template include:
A. Jurisdiction of the Municipality: While common in many states, some do not allow an encroachment on a public right-of-way. The jurisdiction will determine whether your encroachment will be permitted or denied. In New Jersey, the State Division of Taxation has exclusive authority over tax lien encroachments.
B. Description of the Encroachment: The encroachment agreement template will describe the encroachment that the municipality is allowing, and determine the appropriate compensation for the encroachment. All property improvements over grade (natural grade) are subject to removed at the owner’s sole cost and expense.
C. Responsibilities of the Parties: At a minimum, an encroachment agreement should set forth the responsibility for maintenance and improvements for those parties who erect any improvements. The terms of the agreement should be both practical and reasonable under the circumstances. This is especially true when the affected property is already developed with existing improvements.
D. Terms: The term of the encroachment agreement is negotiated by the parties and typically runs with the land. In New Jersey, an encroachment agreement with a tax relief is for twenty-years as provided by N.J.S.A. 54:5-19.1.
E. Variables: The following variables might impact your encroachment agreement template, and the approval of an encroachment:
While parties can benefit from a well drafted encroachment agreement template, there is always the possibility of an adverse legal effect created by poorly drafted encroachment agreements. Property owners should have the advice of qualified real estate counsel prior to entering into an encroachment agreement.
Legal Implications and Regulations
In addition to creating an encroachment agreement or encroachment license, it is important to assess whether the encroachment complies with one or more of the property’s governing documents. A utility easement, for example, could expressly prohibit a certain type of encroachment such as a swimming pool, the placement of trees, the construction of a fence, or the installation of a solar panel array. In more limited cases, the relevant easement may expressly permit a non-utility encroachment, such as the digging of a submarine trench into an adjoining parcel of property to accommodate subsurface pipes or cables between oceanic installations on the Pacific and Atlantic coasts of the U.S. Defendants in trespass actions have been held liable in cases where a defendant’s activity encroached upon the only access route to a government military facility that required a permit prior to entry.
Permits for encroachments may also be required from a governmental or regulatory entity. Not only will compliance with permitting requirements potentially authorize the encroachment, it may also provide an affirmative defense to trespass claims. However, failure to comply with one or more permitting requirements will not only render a party liable for an award of treble damages, it may also preclude a party from seeking the form of equitable relief sought (e.g., rescission of a contract). Similarly, a municipal charter might expressly prohibit a structure, improvement, or alteration from crossing onto or over a private property line. Though rare, it is possible that non-compliance with zoning restrictions could result in a court order requiring removal of the encroaching structure at the property owner’s expense.
The foregoing are a mere handful of issues that should be considered when assessing whether an encroachment exists and whether an encroachment agreement will be necessary. To the extent that there is ambiguity in the existence of an encroachment, an attorney experienced in this area of law will be able to advise a party whether a trespass action would be appropriate, or, alternatively, whether the construction and execution of an encroachment agreement or encroachment license would be preferable.
How to Personalize an Encroachment Agreement Template
In order to effectively edit the Encroachment Agreement template to suit your needs, there are a few simple steps. The first step is to review the entirety of the template to determine if it includes all of the terms and provisions you would like to have in the Encroachment Agreement. After that, you can cut and paste various parts of the template to create your own customized version. In general, it’s important to read each provision and make sure that the language accomplishes your intent. If it does not, revise the language as clearly and concisely as possible. Make sure to note that the template uses some legal terms that the average person may not completely understand. Look up the terms that you don’t know and if they do not fit your idea of the standard use of the term, change it to fit your understanding. What’s most important is to make sure that you are clear on what your rights and obligations are with the template , and that the other party knows exactly what their rights and obligations are. Ensure that both parties know what happens if there is a dispute. Seek out the advice of an attorney if necessary to make sure that everything is done right.
Depending on the context of the encroachment, the manner in which you edit the template for your situation may vary. For example, you might include extra paragraphs about compensation if the encroachment may be dangerous to the public. That being said, it’s still important to follow the basic outline above when adapting the template for your legal purposes. These instructions will help when including extra clauses to make it more specific to your circumstances.
There are also other encroachment agreements online, so search for them to obtain additional guidance to properly edit the encroachment agreement template.
Advantages of a Template
When preparing for a real estate transaction that requires an encroachment agreement, it’s helpful to avoid creating a document from scratch. Utilizing an existing encroachment agreement template can save valuable time and help to keep costs down. When exploring this option, you’ll find a wide range of template styles. It’s recommended that users select a pre-existing template based on the specifics of their situation. For example, general templates may be intended for building lines or property lines, while others might focus on fences, eaves, or underground utilities. The benefits of choosing an encroachment agreement template are multifold: Time Savings Using a template to create an encroachment agreement saves a lot of time compared to writing your own. Your options include creating an entirely new document or choosing a template and adding information pertinent to your contract. It’s a huge timesaver to have a document prepared for you instead of having to start from complete scratch. Simplicity A pre-made encroachment agreement template can save you from needing to consult with your attorney, which may be necessary when drafting a new agreement from start to finish. With a template, you can get a general document prepared and then just fill in your specific information about the easement, the parties involved, the date of the contract and any other basic details. Most templates come with useful prompts to help you remember what details you need to include, which simplifies the process significantly. Templates can be used as-is, or they can be used as a springboard for your own creativity in creating an encroachment agreement. Editors on some programs also have the ability to offer suggestions, which make it easier to create documents without having to refer to other resources to remind you about what is legally required. Legal Standards Buying an encroachment agreement template ensures that your document meets basic legal standards. Legal encroachment agreements need to have certain aspects contained within them in order to be deemed valid, and these necessary items are included within templates. When you use a template, you know you’re not missing anything important from your encroachment agreement. Customization Encroachment agreement templates can be customized to meet your individual needs and requirements, and they’re compatible with almost any kind of word processing program. If you need to make modifications to the document after it’s been prepared, it’s easy to do so. Simply reopen the template file with your favorite program to make re-edits as needed. Templates are ideal for those who need to make frequent modifications to certain types of documents, and it lends itself to customizing for different types of encroachment agreements as well.
Common Pitfalls
Common mistakes that people make when it comes to an encroachment agreement include:
Failing to ensure the encroachment agreement is appropriately registered on title.
Failing to consider and address noise, vibration, air quality , and light spillage from the encroaching structure.
Not including a plan to describe the location of the encroachment.
Failing to properly identify encroachers and the property on title. It is important to provide accurate legal names and descriptions so that the encroachment agreement applies to all relevant parties.
Not seeking professional legal advice to review the encroachment agreement to ensure that the agreement complies with all relevant zonings, statutes, regulations, easements, by laws and other agreements. Professional advice is also necessary to ensure that the rights of both parties are appropriately considered.
+ There are no comments
Add yours