Hawaii Encroachment Agreement
At DeVries & Associates, we’re regularly asked to draft encroachment agreements. These agreements address intrusions into a piece of real estate by a neighbor’s wall, fence, or other improvement. While some encroachments are minimal and inoffensive, others can seriously impact the value of your property. Learn how we can help resolve encroachment issues with a legally binding agreement.
How Does an Encroachment Happen in Hawaii?
Most encroachments aren’t malicious or intentional land grabs. We all think we know where our property begins and ends. Many times, we “eyeball” fences, walls, hedges, and other real estate improvements. This especially true in the past when real estate surveys were relatively rare. This means that your property might have decades’ worth of other people’s property line estimates on your property, shaping how you and your neighbors use the land.
Suddenly, when you’re about to sell a parcel of real estate, you discover that what you thought was your land is actually your neighbors — and that your lanai is firmly on their property. How do you sell your house when it extends onto someone else’s land? The answer typically rests in an encroachment agreement.
When Do I Need an Encroachment Agreement?
You do not need an encroachment agreement if the intrusion is de minimis (or very minor). For all other encroachments, you need to obtain an encroachment agreement with your neighbor before you sell the property. If you’re unsure whether your encroachment is de minimis, contact DeVries & Associates for a personalized assessment.
If the intrusion requires an encroachment agreement, you’ll need to enter an agreement with your neighbor that:
- Identifies each landowner
- Includes a survey of the land
- Permits the encroachment to remain as long as the encroaching party maintains it and agrees to rebuild on their property if the structure is subsequently destroyed
- The encroaching neighbor does not receive an interest in the land on which they are intruding
Both parties must agree to the encroachment agreement, sign, and notarize it. Then, you should record with the Bureau of Conveyances. While most neighbors will enter an encroachment agreement without compensation, it is sometimes necessary in contentious, complicated, or extreme encroachments.
However, it’s typically in both neighbors’ best interest to enter an encroachment agreement. First, unless there’s an encroachment agreement, a landowner can simply tear down an intrusion into their property. Therefore, the encroaching neighbor should want to protect their wall, fence, or other structure with an agreement. And an encroachment can make the sale of piece of property difficult unless there’s an agreement in place. If you proactively address encroachments, you won’t have to deal with them later on and can avoid passing them on to your children or heirs in an inheritance.
Who Pays for the Survey?
A survey is a detailed study of your land that includes staking of the property corners and a written description of the property and a map. While you should always get a survey before building a wall or fence, you might inherit encroachments when you acquire a property.
When you buy a property, the seller typically will pay for a survey of the land. On average, a survey costs about $1,000 in Hawaii, but the cost can vary depending on the size of the land and the nature of the terrain.
How Do I Resolve an Encroachment Dispute with a Difficult Neighbor?
Not all neighbors get along — and boundary line disputes can become emotional and contentious. If you are involved in a dispute about an encroachment, you should strongly consider consulting with a real estate lawyer at DeVries & Associates. We can help you enforce an existing encroachment agreement or assess your legal rights concerning an intrusion.
Typically, to remove an encroachment, you’ll need to show that you own the property, that your neighbor improperly entered your property, and that the structure should be removed. Once you get a court order, you can remove the offending encroachment.
Because we are a comprehensive real estate law firm, offering both transactional and litigation services, DeVries & Associates is uniquely qualified to help you negotiate, draft, and enforce encroachment agreements. Contact us for a free consultation and an opportunity to learn more about how we approach Hawaiian real estate law.
Schedule a Consultation With an Encroachment Agreement Lawyer
DeVries & Associates is a Hawaii real estate law firm that helps homeowners, investors, and other entities enter and enforce encroachment agreements. If you have questions about a real estate intrusion, contact us for a confidential and no-risk consultation. We can help you understand your legal rights and options. While we always strive to resolve encroachment matters amicably, our litigation team can assist in contentious disputes.