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What should you do if a neighboring landowner encroaches on your organization’s property (e.g., builds a shed or extends their lawn) or otherwise uses the land without permission? Sometimes immediately booting them is the best answer; sometimes making an accommodation that provides them with at least temporary permission makes more sense. Doing nothing invites trouble.
People who use property they don’t own are trespassers[i] unless they have permission or can prove actual, continuous, exclusive, visible, notorious, distinct, and hostile possession (adverse possession) or use (prescriptive easement) of property for (in most cases) 21 years. Putting aside this archaic sounding legal standard. [II] if to a reasonable onlooker it appears that the trespasser is the true owner of the land, there is risk that the trespasser can legally gain rights to the land.
It is easy to avoid this risk. All you need to do is demonstrate control of your land. IF YOU DON’T DEMONSTRATE CONTROL, YOU MAY LOSE IT TO THE PERSON WHO IS USING IT WITHOUT YOUR CONSENT.
You can exercise control –and thus guard against a trespasser gaining rights—in either of two ways:
If you are willing to consider allowing the use to continue, there are three legal relationships to consider for providing permission: license, lease, and easement. This guide briefly reviews the characteristics and how to use each of these.
A grant of a license to use real property provides the licensee the right to enter or occupy certain property for a specific purpose but only for so long as the owner has no objection. In other words, the owner may withdraw permission at any time for any (or no) reason.
No formal agreement is needed to establish a license; a simple letter from the owner to the licensee will suffice. Not putting the license in writing is risky, because an encroacher might claim that the owner provided the encroacher with an oral lease—a permission not immediately revocable—rather than a license, which is revocable at any time. In Pennsylvania, a successful claim of oral lease may result in the unwanted use continuing for up to three years. Also, without evidence that the owner has exercised control, there is still risk of a claim of adverse possession.
WeConservePA’s Model Permission for Encroachment is a license agreement. It allows an encroachment to continue until the owner withdraws permission. The model document also features:
The following characteristics of a license are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:
If the owner is willing to give the encroacher permission to use the land for a specified minimum period of time and particularly if the encroacher will compensate the owner for this permission, they are looking at entering a lease (rather than license) relationship. With a lease, the encroacher becomes a tenant.
A writing signed by both parties is highly desirable to establish, at the very least, the area being leased, the length of the lease, and the compensation to be paid to the owner. Consider including other items typically addressed in lease forms such as responsibility for the condition of the leased premises and the safety of persons and property. A prohibition on the tenant being able to assign the lease to another party without the owner’s consent and a right for the owner to terminate the lease if the tenant defaults are also important to include because, as outlined below, in the absence of such specificity, the law by default will favor the tenant in these matters.
The following characteristics of a lease are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:
The use rights granted by an easement are permanent, which is the key distinguishing feature from a license or a lease.
The grant of an easement is documented with the same formality as a deed and, to be enforceable against third parties, must be recorded in the public records just like a deed.
The following characteristics of an easement are the interpretation that Pennsylvania law will provide unless the parties provide otherwise in their documentation:
[I] An encroachment is a situation where a building, structure, or something else goes beyond the boundary of the owner’s land onto a neighbor’s property. It is a form of trespass.
[III] The protections afforded the owner in the Model Permission for Encroachment regarding liability for personal injury and property loss are similar to those included in WeConservePA’s Model Release Agreement.