What is Land Encroachment?
Land encroachment can be broadly described as the unlawful interference with another person’s right to use or enjoy land. This legal term describes a number of different types of situations. In essence, it gives one property owner limited rights over the land of adjoining property or in some other way limits the owner of the adjoining property.
One obvious example is an encroaching fence or detached structure. If your neighbor builds a fence two feet within your boundary line, your neighbor is encroaching upon your land. If a business owner erects a permanent awning that hangs over public property, the structure may be considered an encroachment on public land, unless the business owner has obtained a permit.
Problems with trees between two properties can also arise . For example, what if a neighbor plants a row of trees along the boundary line and eventually those trees grow roots that damage the neighboring property’s foundation or interfere with the adjacent land owner’s ability to use the land? Or, what if tree branches from one property extend into the airspace of the neighboring property? If the tree owner fails to keep the branches trimmed, the neighboring property owner might have been damaged by fallen branches or be adversely affected by the overhanging branches. Although cutting branches of a tree is a nuisance, it normally is not a trespass, provided the tree owner has the right to maintain the tree.
What about when tree roots from an adjoining property cause subsurface damage or problems? Land owners are not liable for the damage caused by tree roots that cross into adjoining land.
In addition to boundaries, space and structures, land encroachment disputes may involve a new structure built on an easement creating an encroachment. The legal analysis often must focus on the reasonableness of the encroachment in relation to the purpose of the easement.
Indicators of Land Encroachment and Detection
As soon as the boundary line is crossed, encroachment begins. There are two prime signs that this has occurred. The first is a physical sign. The most common examples of this are fencing, pathways, gardens or structures and are pretty obvious. The second is in the documents. You want to review what your deed says the extent and dimensions of your property are. If you have a plat map, it is wise to review with your neighbor what this map says the dimensions of their property are as well. Knowing where the corners are as well as the sides is crucial to knowing what land is yours and what land is not. Typically, the best way to detect encroachment is to have a survey done. This is a good idea if you and your neighbor have different opinions about the corners of your lot or if there is a dispute about the encroachment itself. It may be necessary to have an attorney involved to deal with the issues that come up.
Legal Aspects of Land Encroachment
The issue of land encroachment is governed by various provisions in law, including the Limitation Act 2016 (the "Limitation Act") and the National Land Code 1965 ("the NLC"). Under Section 33 of the Limitation Act, a suit by the true owner for the recovery of land may be brought within a period of twenty (20) years from the date when the right first accrued to the plaintiff to bring the action or, if it is based upon successive conversions, within thirty (30) years of the date of the last conversion. Sections 341 to 355 of the NLC deal with the procedure pertaining to actions to recover possession of land. The process involves a three (3) stage procedure. In the first stage of the procedure, a Plaintiff is required to file an application to enter a caveat on the land in order to restrain the Defendant from registering any dealings in the land (see section 341 of the NLC). The actual action for recovery of possession will commence only upon the Court allowing the Plaintiff to caveat the land (see section 347 of the NLC). Once the Plaintiff is allowed to caveat the land, it must then proceed to file a Writ of Summons and Statement of Claim. The Writ of Summons and Statement of Claim should be served on the Defendant together with the Defendant’s caveat (if any) and the Notice of the Order allowing the caveat. The process of service of the Writ of Summons is governed by the Rules of Court under the Subordinate Courts Rules 1980 (SCR), the Rules of Court 2012 (RCR), and the Rules of the High Court 1980 (RHC). Pursuant to Section 348 (1) of the NLC, if on the expiry of a time of two (2) weeks from the service of the Writ of Summons and Statement of Claim the Defendant does not file an appearance, the Plaintiff may apply to the Court for judgment in default. In Peninsular Malaysia, the relevant Land Offices are responsible for managing and overseeing registration of title and registration of dealings in land, including applications to caveat land in the said Land Offices. Where Peninsular Malaysia is concerned, the relevant statutory body is the Ministry of Natural Resources and Environment. The relevant authority in Sarawak is the Land and Survey Department of Sarawak and the relevant authority in Sabah is the Land and Survey Department of Sabah. Each State may have their own statutory body to administer land.
For Peninsular Malaysia, caveats may be lodged online or through the respective Land Offices. From our experience, when a caveat is filed, the relevant Land Office would require a copy of our client’s identity card as well as a copy of the relevant title document of the subject land. Section 341 (1) of the NLC provides that the caveat may be lodged by the superior proprietor or a person claiming to be entitled to an estate or interest in land and who is desirous of preventing dealings with the land. Upon the receipt of the caveat, the Land Office would then be required to issue a notice of the application of the caveat through any publication or any other means it deems fit (see section 341 (2) of the NLC). The notice would publish the name of the caveator, the description of the land affected by the caveat and the relief sought by the caveator.
In Sarawak (as opposed to Peninsular Malaysia), once a caveat has been lodged, the Land and Survey Department should acknowledge the receipt of the caveat lodgement within twenty-four (24) hours. The Department would then consult other relevant departments, such as the Planning, Survey and Land Registry Departments and obtain their comments on the caveat lodgement. Thereafter, the application for caveat would be submitted to the Minister of Resource Planning for approval. Once the Minister’s consent is given for the caveat lodgement, the Land and Survey Department would register the caveat with the Land Registry. Thereafter, the Department would issue a notice of the caveat to the caveator. Similar to Sarawak, in Sabah, the notice of the caveat would also be published.
Actions to Consider When Suspecting Encroachment
The first step a landowner should take when he believes that someone has encroached upon his land is to send a written demand to the alleged encroacher asking him to stop using the encroaching portion of the property. If the encroachment has been ongoing for any appreciable period of time, the landowner will likely need to take additional steps to protect his property from future potential encroachments by sending the demand to remove the encroachment by a certain date to permit him the right to clear title to the property. Including in the demand a request for a response in writing can be helpful and is sometimes required to comply with state or local statutes or ordinances. This step may be the most important and critical to establish your intentions and, sometimes, your notice if the encroacher claims that he had no idea that he had been encroaching upon another’s property.
Spelling out the details of the encroachment as specifically as possible in all of your communications can be useful. The property owner may want to consider hiring an engineer or land surveyor to define the boundaries and exact location of the encroaching items by its legal description and physical dimensions so that the encroaching property owner understands exactly what he needs to remove or move.
In addition to sending the initial written demand with a defined timeframe to remove the encroachment, the property owner may choose to take remedial measures to preserve his legal rights. This can include recording the initial demand (or a memorandum of the encroachment in some jurisdictions) so that any future prospective buyers of the encroaching property are on notice that a potential claim exists over the property previously held out for sale.
Taking of a periodic survey of the Land and keeping these surveys on hand can make the process of showing the true property lines less of an arduous task.
Negotiation to Settle the Dispute Amicably
Once a landowner becomes aware of an encroachment, the first step should be to meet with the encroaching party to discuss it. While there may be a fear that acknowledging the encroachment will lead to litigation, it’s often better to deal with the problem before it grows worse.
Speaking to the encroaching party in an amicable way provides you with the opportunity to address the issue at hand in the most convenient way for you. While a small encroachment may seem insignificant, if the encroaching party chooses to make the issue a problem, it could hit your pocketbook hard. In a situation where litigation seems unavoidable, taking steps to avoid it through negotiations may be the preferred strategy as well.
Resolving an encroachment matters amicably also helps to maintain an amicable relationship with the encroaching party. Many disputes can be resolved without the need for legal action, and trying to reach a compromise is in everyone’s best interest. Even if you micro-manage the issue to the max, doing so helps to maintain an amicable relationship. Then, if it turns out the encroachment becomes much more significant , you are already on good terms with your neighbor. Additionally, if the encroachment is in fact minor, most people don’t want to sue their neighbors; they would prefer it just didn’t happen in the first place.
If the encroaching party is agreeable, there are several ways to resolve the matter. Sometimes, a simple alteration at the cost of the encroaching party can allow them to correct the issue. Then, both encroaching and encroached enjoy the fruit of their labor on their respective parcels of land. The encroaching party may also agree to compensate the affected landowner to the extent of the damage caused by the encroachment. Both of these options avoid the need for litigation, which is in everyone’s best interest.
Finally, it is important to be aware of what rights you have as a landowner. When speaking to the encroaching party, ask them to compensate you for all damages or the encroachment, including removing the encroachment. Then, suggest that you and the encroaching party both pay the costs of altering the land or making restitution. This way, you will be prepared to proceed with litigation should it become necessary.
Initiating a Legal Complaint for Encroachment
When faced with a situation where a neighbor has encroached upon your land, filing a civil complaint is sometimes necessary. This step is typically the last resort in addressing land encroachment and is generally best handled by an attorney. A legal complaint must be filed with the court in the county that is home to the property along with a complaint form which will require the following information to be provided to the court:
- The names and addresses of the parties involved;
- The legal description of the property that is encroached upon;
- A description record of the encroachment, and the remedy sought by the plaintiff such as:
a. An injunction to stop an encroachment.
b. Damages to cover an encroachment to a neighbor’s fence.
c. Compensation for Lands encroached upon by a neighbor’s livestock or farm equipment.
d. Removal of structures built on an encroachment.
The time frame in which a judge can sign a legal complaint depends on the urgency of the situation. Sometimes a judge will sign a temporary order until a hearing can occur to address the complaint. Sometimes, these hearings can take place within a couple of weeks. A few factors that can determine the time frame may include:
- The availability of the calendar of the judge involved in the case.
- The location at which the complaint is filed.
- The availability of trial lawyers or substitutes to handle the case.
- The availability of other witnesses to be present.
- The schedule of the attorney involved.
A suit to quiet title may be appropriate if there is a question of title to the land. An action to establish an easement is also appropriate for certain land encroachments.
Court Procedure and Possible Outcomes
Once a complaint has been filed in an encroachment matter, the court will set a hearing date or trial date. Depending on the nature of the complaint, there may also be a trial management conference and/or case management conference before the actual hearing or trial date.
If the court believes there is merit to the complaint, the court may grant a preliminary injunction, abate any ongoing encroachment activities, and/or set a bond. If the injunction is pre-trial, the defendant may be required to post a bond to protect the plaintiff from incurring damages as a result of any wrongful act (bonding often discourages encroaching parties). A preliminary injunction will be supervised by the court until the matter is resolved or until a formal trial/ hearing date is given. Depending on the nature of the complaint, defendants of a land encroachment action may be entitled to a statement of damages or without notice injunctions. If there is sufficient proof of damages, or if a quick resolution is necessary, a defendant may be ordered to immediately pay money into court to cover the plaintiff’s distribution of a misappropriated fund. In some cases, the defendant may also be ordered to disgorge profits from the activity giving rise to the encroachment action. Most encroachment actions will proceed through a jury or a bench trial, where the judge or jury decides whether there is a valid basis for damages and if so, the value of the damages. If the encroachment had been established, the court would order the encroaching party to pay damages. Damages can include attorney’s fees and costs, and should be substantiated with a declaration and proof of payment. Third-party fees and costs are generally not awarded, unless there is a vested liability or obligation.
Precautionary Measures to Prevent Future Incidents
After successfully removing an encroachment, it is essential to consider how to prevent future incidents. Homeowners and property owners can implement several preventative measures to ensure that their boundaries are well-defined, protected, and maintained.
One of the most effective ways to mitigate boundary disputes and prevent encroachment is to perform regular maintenance on property boundaries. This can be accomplished by trimming encroaching roots, pruning branches and over-hanging vegetation, and maintaining fences and walls. In doing so, property owners are reinforcing their claim to their property by clearly demarcating where their property starts and where it ends.
Another way to safeguard against future encroachments is to have your land surveyed on a regular basis, particularly after any major development or construction on the nearby properties. A professional survey will provide a detailed and accurate assessment of your property lines. If disputes do arise, a survey provides a clear and unbiased map of the property lines, which is often the most useful evidence in a lawsuit to determine the location of the property lines and establish who owns what.
Regular surveys also allow a homeowner to address minor encroachments and license their neighbours to encroach on their land, whether through inactive license or statutory license. These licenses can prevent "lost easements" or loss of ownership claims by neighbours who own the encroaching land and do not take action to correct the encroachment within the statutory time period . If the neighbour is still in possession of the encroaching land despite the encroachment being authorized by a license, an action in trespass may be commenced against the neighbour to eject them from the land. That said, there is no obligation on the part of the owner to commence an action in trespass. An owner may simply choose to accept the encroachment as long as the neighbor pays some amount of rent and each party keeps up their own portion of the fence dividing their properties if there is a fence.
Lastly, property owners seeking certainty that their land is secure can strengthen their claim to their property by applying to the Land Title and Survey Authority for a legal land title. Land titles provide a public registerable record of land ownership which is extremely important when dealing with boundary disputes. Registration of a legal land title solidifies the owner’s claim to the land because it formally demonstrates ownership and the dimensions of the land as well as the right to possess the land. Issuance of a title also protects the purchaser from subsequent claims and transfers of land on the part of the previous owner and other claimants.
It is crucial that a property owner take some steps to avoid future encroachments if they have successfully removed an encroachment from their property. Regular maintenance and repairs to the property demarcation will reinforce their ownership claim and deter neighbours from encroaching on their property in the future.