ENCROACHMENTS

When a building or other structure extends beyond the land upon which it is constructed, and intrudes onto the property of the neighbor, without his or her consent, this is an encroachment. An encroachment is ordinarily onto the land, but an intrusion into the airspace above the neighbor’s land can also count. Pahl v. Ribero (1961) 193 Cal. App. 2d 154, 162-163.

Any one who has a legally protectable interest in the property can sue over an encroachment. Ordinarily, of course, it is the owner of the land who objects to an encroachment. A leaseholder, however, may also sue for encroachments. Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal. 2d 855, 858. The owner of an easement can also sue, if his or her easement is encroached upon. City of Dunsmuir v. Silva (1957) 154 Cal. App. 2d 825, 827-828.

A person damaged by an encroachment can sue for money damages. They can also sue for an injunction: a court order directing that the encroachment be removed. When an injured party seeks such an injunction, the Court may not grant it. As the leading Court of Appeal decision put it, “where the encroachment does not irreparably injure the plaintiff, was innocently made, and where the cost of removal would be grate compared to the inconvenience caused plaintiff by the continuance of the encroachment, the equity court, may, in its discretion, deny the injunction and compel the plaintiff to accept damages.” Christensen v. Tucker (1952) 114 Cal. App. 2d 554, 559.

In other words, a court, which is requested to order an encroachment removed, may balance the harms and benefits to each side. If the party who built the encroachment did so, without meaning to, and if the cost of removing the encroachment is great, compared to the harm of leaving it there, the court may refuse to order it removed and instead order the encroaching party to pay damages. Such an order might be appropriate, for example, if a house, a garage, or some other large and expensive structure was built, a few inches over the property line. Moving the structure, in that case, could be very expensive, and, since the encroachment is slight, the court might simply leave it there and order money damages paid in compensation. Hirshfield v. Schwartz (2001) 91 Cal. App. 4th 749.

Share