When conducting a survey, many owners, title companies, and attorneys will ask for all encroachments to be shown on a survey. This is a difficult order to fulfill.
According to Black’s Law Dictionary, Sixth Edition, an encroachment is “an illegal intrusion…”. To put it in simpler terms, an encroachment occurs when a man-made object (improvement) crosses a property line or easement line AND the owner of the easement or adjoining parcel does not allow the improvement to be there. From the surveyor’s perspective, how are we to know what is allowed or not allowed?
I contend that is not the surveyor’s charge to decide what is allowed or not allowed. It is the surveyor’s responsibility to report what he or she finds at the time of the survey and simply report the facts.
This becomes a little more complicated when it comes to fences. In the field, it is hard to determine the ownership of a fence (who paid for it) without looking at a receipt. Therefore it is next to impossible to determine if there is an encroachment or not. However, it is possible to show the position of the fence relative to the property line without regard to the ownership. Most boundary and title surveys will show all improvements within five (5) feet of the property lines. This will give a clear idea of what may or may not cross the line.
When everything is said and done, the word “encroachment” is a legal term. A surveyor can, and should, should show intrusions or protrusions of improvements across a line and let the lawyers decide whether or not it should be there.
By: Miguel A. Escobar, L.S.L.S., R.P.L.S.