Wednesday, April 9, 2014

Blog Post #2

Nathan A. Bertao
April 7, 2014

Encroachments & Individual Rights in Real Property

            Encroachments are a huge legal issue in regards to property rights in the United States. Encroachments by definition are unauthorized intrusions of a fixture or improvement by a neighboring property. These intrusions can take place when ones individual rights in real property have been troubled. Individual rights in real property include surface rights, air rights, and subsurface rights. When any of these rights have been distressed by a neighboring property, without authorization, encroachment is in full effect. It is important that when issues regarding encroachments arise that as a property owner these issues are addressed immediately. If they aren’t attended to immediately, as the owner you may potentially lose ownership of whatever property is being intruded upon, in concordance with adverse possession law.
            As mentioned earlier, each person is given rights in real property. Those include surface rights, air rights and subsurface rights. Surface rights are the ownership rights to occupy and use the surface of real estate. Most rights in regards to ownership in property refer to surface rights. Surface rights are the surface area that a person owns within his/her property lines that ones house sets upon. Surface rights are also usually tied together with mineral rights given that within surface rights one has the right to drill or mine through the surface where into the subsurface.
            Subsurface rights are the ownership rights associated with the area underneath the earth’s surface. Under individual rights in real property one has rights to the area that’s underneath the earths surface as well. A subsurface right is best explained as if one were to take their property line and extend it all the way to the center of the earth. Subsurface rights only extend downward to distance we can reach with today’s current technology.
            Air rights are considered to be the ownership and usage rights to the space above the land.  Air rights are best explained as if one were to take their property line and extend it all the way to the heavens and outer space. Practically however, ones air rights extend up to a ‘reasonable height’. Meaning, you can’t go suing American Airlines every time one of their planes fly over your house while being 5,000 feet in the air.

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            Back to Encroachments, which is when an authorized intrusion takes place of a fixture or improvement by a neighboring property. A common encroachment takes place in construction often when a fence is installed in an inaccurate location. Some encroachments are more serious than others and a situation like a fence encroaching on to your property shouldn’t be taken lightly. By establishing a fence on to your property line or boundary line, a neighboring property is invading upon ones surface rights.
Another common overlooked form of encroachment takes place between neighboring properties and trees. If your neighbor has a tree, and that tree has branches hanging over the fence that you share on to your property, that tree is encroaching on your property and violating your air rights. This is a minor example of encroachment that can easily be resolved by simply having the tree pruned. Minor nonetheless, this issue should still be addressed as a property owner.
            If a situation such as this isn’t addressed, the neighboring property that is encroaching on your property may eventually gain possession of whatever property he/she has been encroaching on through adverse possession. Adverse possession is when someone occupies property for a statutory period of time, (usually 7 to 20 years) without the owner’s permission and gains an ownership interest in the property. Adverse possession is also known as squatters rights and if a owner doesn’t remove a trespasser such as one invading on ones property with a fence, the trespasser can argue that they have met the requirement for adverse possession given that the fence has been there for seven or more years.
            All in all, it is important as a property owner to shield your estate. One can never tell if a neighbors intentions or good or bad in regards to whether they are trying to ultimately gain property through adverse possession or not. As a homeowner know your individual rights in real property and protect those rights. Encroachments are a big legal issue and can have enormous and somewhat unfair ramifications if one does not defend the rights of ones territory and address neighboring properties when an issue arises.


Diaz, Julian, and J. Andrew. Hansz. Real Estate Analysis: Environments and Activities.


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