Checking for Encroachment & Adverse Possession
- Adam Garrett
- Dec 23, 2024
- 6 min read
Updated: 1 day ago
A commonly neglected element of real estate in some places like Hampton Roads in VA where surveys aren't typical on home purchases (though still typical on land purchases) is checking for encroachment and adverse possession. Below the majority of what I'll be sharing is principles applicable in most states, but with the law focused on VA.
Basics
What is Encroachment?
Per Investopedia (not specific to VA):
"In real estate, encroachment means one property owner is violating the rights of another by building on or extending a structure to the neighbor's land or property intentionally or otherwise. Encroachment can be a problem along disputed property lines.
Key Takeaways
Encroachment occurs when a property owner trespasses onto their neighbor’s property by building or extending structures beyond their property line.
Property owners may encroach on their neighbors intentionally or unintentionally.
Structural encroachment occurs when a property owner builds or extends a structure onto public spaces.
Boundaries and property lines can be cleared up by getting a land survey.
Although similar, easements are consensual and provide fair compensation to the legal property owner."
What is Adverse Possession?
Per the Legal Information Institute (not specific to VA):
"Adverse possession is a doctrine under which a trespasser, in physical possession of land owned by someone else may acquire valid title to the property. The adverse possessor to meet state specific requirements and listed below are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations. Adverse possession has a public policy motivation of allowing those who actually use or cultivate land have the benefits of ownership and to avoid neglected or unmaintained land.
The common law requirements have evolved over time and they vary between jurisdictions. Typically, for an adverse possessor to obtain title, their possession of the property must be:
Continuous
A single adverse possessor must maintain continuous possession of the property.
However, Howard v Kunto established that continuity may be maintained between successive adverse possessors as long as they are not the true owner, or owner of the title, and if there is privity, or connection, between them, like buyers-sellers.
Hostile
In this context, "hostile" does not mean "unfriendly." Rather, it means that the possession infringes on the rights of the true owner.
If the true owner consents or gives license (permission) to the adverse possessor's use of the property, possession is not hostile and thus, it is not adverse possession.
Renters cannot be adverse possessors of the rented property, regardless of how long they possess it.
Open and Notorious
Possession must be obvious to anyone who bothers to look, so as to put the true owner on notice that a trespasser is in possession.
One will not succeed with an adverse possession claim if it is secret.
Actual
The adverse possessor is actually in possession of someone else's property.
The true owner has a cause of action for trespass, which must be pursued within the statute of limitations.
Exclusive
The adverse possessor does not share control of the property with anyone else (unless in privity with themself).
They exclude others from possession, as if they were the actual owner.
A typical statute requires possession for 7 years, if under color of title, or 20 years if not. The threshold, however, varies by jurisdiction. For example, California requires possession for only five years, while New York requires possession for 10 years to qualify as adverse possession." Virginia requires 15 years.
How Does a Survey Impact Title Insurance?
At least in Virginia, if you get a survey or there is a recent survey on file within 60 days of closing as a buyer, you can include that in owner's title insurance, while if you don't have that, you'll be unprotected.
Difference Between Plat & Survey
A "plat", i.e. one that the city/county has in their possession, is typically not as detailed as a survey. In some cases, it will focus on multiple parcels, while in others, it will focus on a single parcel.
Steps to Locate Potential Encroachment if You Don't Have a Survey:
Determine what website or app you'll use to start other than Google Earth to Find Parcel Boundaries
Google Maps
the tax records (often having higher accuracy)
Regrid app or website
What to Look For
First, locate the potential encroachment by looking carefully at lot lines & being familiar with anything that is supposed to belong to the property. Be sure to note the directional impact of images for satellite images based on looking at the different sides of a building or other fixture (i.e. a fence or wall).
Get a Survey for Highest Accuracy
While a survey is the first line of defense if you already have one, you can typically confirm whether or not encroachment exists (since plots without a survey may be inaccurate) with a survey. Surveys typically run a few hundred to a thousand dollars, though the larger and more complex the lot, the higher the cost will tend to be.
If purchasing a home, depending on the contract you use, you may need to stipulate in the offer whether or not you'll be getting a survey. Such a stipulation up front is a default part of the REIN Standard Purchase Agreement (in the Deed & Title Section) that's common in Hampton Roads, while not a default part of the VAR Residential Contract of Purchase (1, 2) that's sometimes used in Hampton Roads (i.e. Gloucester & Williamsburg at times) & more popular elsewhere.
Steps to Locate Potential Adverse Possession via Historical Imagery
Get Google Earth
Download Google Earth on a desktop/laptop if you haven’t already (the web desktop version won’t work for what’s next)
Easiest Option: Side by Side Differing Programs
While you'll lose some accuracy, the easiest way to look for encroachment is by having maps on Google Earth and another program like Matrix MLS, the tax records, or Google Maps (see list of options above) side by side, and shifting the orientation and size of both to match as best you can.
Option to Import Single Parcel Map onto Google Earth
While this step isn't for the faint of heart due to the time (at least a few minutes) and complexity involved, as well as the need for precision to line up the map to Google Earth, it is possible to import parcel boundaries directly into Google Earth using Google Maps & Google My Maps.
Option to Import Whole Cities or Counties into Google Earth
In some cases, it's even possible via cities/counties or paid programs to import whole tax maps, but that will depend on your budget (typically $45-$165 per city/county for existing maps, with none in VA yet as of 12/23/24) and your patience.
Input the Address
Input the property address into Google Earth’s downloaded program on a desktop/laptop on the top left & hit enter or click “search”. Locate the address on the other program you're using as well.
Open Google Earth Historical Imagery
Select "view" on the top left and check the box for “historical imagery”.
Go back at least 15 years in VA (& other amounts in other states) to find out if the encroachment occurred then or sooner.
You should now see the option to go back in time (with typically lower quality the further you go back, but with many expectations between photos so be sure to check at least a few) by using the arrows on the sides to gradually shift to 15 years ago, checking also between 15 and 20 years ago when considering the 15 year requirement. If the orientation shifts for the historical photos in a way, you may need to make an adjustment. If trees are in the way, see if there is an image 15 years or more back (in VA) without trees (i.e during the winter for deciduous trees).
Easements by Prescription After 20 Years in VA
Easements by prescription are different than regular adverse possession, and may take 20 years in VA. That requirement drops down to 10 years for prescriptive easements for some cases of the provision of water & sewer services in VA.
Key Law to Know in VA on Elements of Adverse Possession
As you view the map, keep in mind the following:
“A trespasser’s possession must be 1) hostile (against the right of the true owner and without permission); 2) actual (exercising control over the property); 3) exclusive (within the possession of the trespasser alone); 4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and 5) continuous for the statutory period (which is 15 years in Virginia, under Va. Code Ann. § 8.01-236).”
Related:
SE VA Area Guide (w/ plenty of info even for those outside the area)
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