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In recent times, the close proximity of adjacent owners in residential areas, often result in property owners becoming involved in disputes with their neighbors.  Encroachment disputes may occur when the neighbor’s boundary wall, tree, grass or a structure exceeds the true boundary line and encroaches upon the other’s property.

In such cases, the encroached land owner is, however, not without relief.  The aggrieved party may in such cases report the encroachment to the local authority, which has the authority to issue a directive to demolish the structure.  In the alternative, s/he may also approach the court for appropriate relief.

In cases of encroaching structures, the courts generally weigh up the respective owners’ interests and order payment of damages or compensation to the aggrieved owner, as opposed to directing the demolition of such structure.  Practically, the court would order the encroaching owner to take transfer of the portion of his or her neighbor’s property that is encroached, in return for payment of financial compensation in the form of damages.

The remedies for structural and nonstructural encroachments are discussed in Martin v. Martin.[i]  In this case, it was held that the landowner may treat the invasion as a nuisance and take certain action, including:

• remove physically,

• abate through a court order,

• sue for damages and

•sue for trespass-to-try title to determine title and possession of the property.

Grass may also form the subject matter of encroachment cases.  The rules governing encroaching grasses are specified both by case law and statutes.  As a general rule, when a grass spreads across boundary lines and takes root, it becomes the neighbor’s property.  Thereafter, the neighbor has unrestricted use.

In case of encroachment by trees, the general rule is that a tree with all its roots and branches belongs to the owner of the soil where the trunk rests.  Therefore, trees forming the actual boundary line between properties can not be removed without the consent of both landowners.[ii]  In case of trees growing entirely on one owner’s land and invading another’s property, either landowner may cut the limbs or roots at the property line.[iii]

The courts exercise wide discretion in dealing with encroachment cases.  In exercising its wide discretion, the court takes into account factors which endorse the principles of reasonableness and fairness before deciding on the remedies to be granted. In practice, it considers the respective degrees of prejudice which may potentially be suffered by both owners, before granting any order of relief.

[i] 246 S.W. 2d 718.

[ii] Brown v. Johnson, 73 S.W. 49

[iii] Flusche v. Uselton, 201 S.W. 2d 58

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