A Brief Introduction About the Encroachment Agreement
Encroachment occurs when one person improves a part of their property that enters the property of another without the other’s permission. This encroachment can be in the form of a newly erected fence, a wall, or a gate, and is usually a form of an improvement done on a property. This can happen intentionally or accidentally. So, what is an encroachment agreement?
The agreement is a legally binding contract entered into by the party whose property has been encroached upon and the party who encroaches, stating the resolution they have arrived at, and the terms and conditions of that resolution. It is a document that governs how such encroachment will be handled.
The agreement can be called property encroachment agreement or easement encroachment agreement, or an encroachment maintenance and removal agreement.
Who Takes the Encroachment Agreement? – People Involved
The agreement is entered into by two parties. The first party is the one whose legal property has been encroached upon illegally, and the other party is the owner of the property that is encroaching upon the property.
The agreement is entered into only when the person who is encroaching refuses to remove it and the party whose property is encroached upon agrees not to break it down and let it remain, even if it is for a temporary period.
Purpose of the Encroachment Agreement – Why Do You Need It?
The agreement works as a resolution. It lays down the terms and conditions that state what happens after the discovery of the encroachment, and how it is to be handled. This document becomes a part of the property documentation of both the property owners and helps settle any issues related to titles that might arise in the future. It is useful during the buying or selling of property.
Contents of the Encroachment Agreement – Inclusions
The agreement contains the following:
- The names of the property owners and their contact details.
- The addresses of the properties for which the encroachment contract is being drafted.
- The type of encroachment.
- The terms and conditions governing the encroachment.
- The acceptance clauses, where one party grants permission to the let the encroachment remain.
- A list of permissions and situations for entering into the property that has been encroached upon in the future.
- Tax liabilities
- Representations and warranties
- Responsibility for maintenance
- Compliance with statutory laws for the encroached property
- Legal implications of the encroachment
- Term and duration of the encroachment
- Damages, advances, or security deposits that need to be paid
- Insurance taken on the land
- Restitution of the property after removing encroachment
- Termination of contract
- Governing laws and jurisdiction
How to Draft the Encroachment Agreement?
These key points can help in drafting a stronger, loophole-free agreement:
- Insert a clause that deals with the situation of what happens when the encroachment is broken or damaged in the future.
- Cover the heirs, successors, and assignors in the contract.
- Mention the governing law and the method of dispute resolution.
- Insert the boilerplate legal clauses like entire agreement, indemnity, etc.
- Insert a clause where the parties are required to sign a termination of the same agreement when the encroachment is moved.
- Mention the survey number and details that led to the discovery of the encroachment.
- State that the title of the property remains with the original owner, along with all the rights to it.
Negotiation will help in setting the terms and conditions of the contract. It will also facilitate cooperation between the two parties. The best strategy to adopt will be to let both parties have their say and create a win-win situation. Negotiation will be based on the time for which the encroachment will continue. It will also include what the injured party will receive out of such encroachment.
Benefits & Drawbacks of the Encroachment Agreement
- It creates a resolution.
- It avoids a future dispute about the title.
- It is transparent and legally enforceable.
- It lays down all the rights and obligations of both the parties, removing misunderstandings.
- It is helpful during the buying or selling of property.
- It gives an undue advantage to the party who encroaches in most cases.
- It can be expensive to draft as usually, a real estate attorney’s expertise is required for it.
- It does not provide a guarantee against legal disputes concerning the same encroachment.
- Drafting the agreement can be time-consuming.
What Happens in Case of a Violation?
In case of a violation of an agreement, the injured party can follow the dispute resolution procedure agreed upon in the contract (mediation, arbitration, etc.). The injured party can claim monetary damages, call for the reformation of the document, request for its specific performance, ask for rescission, or injunction. Consulting an attorney is a must for the best path to take after a violation of the encroachment contract. A breach of contract would put the encroachment back on the grounds of prosecution because encroachment is illegal. So the injured party maybe served a notice
The contract is the best way to peacefully settle the issue of encroachment as most of the time; it is accidental.
The agreement has to recorded in the County Clerk’s office once it is signed. Even though the agreement is relatively simple, it is advisable to hire an attorney for the same or refer to an encroachment agreement form available on the internet.