Easement Agreement May Not Solve Property Encroachment

Q: I own a hillside/lakeside lot in South Carolina. Recently, I hired a contractor to build a retaining wall to stop erosion into the lake. Retaining walls in this area are common, necessary and large. The contractor I hired built a home adjacent to my property. He has finished my neighbor’s home and my wall.

I had a survey done for the contractor just prior to his building my wall, but when I had a final survey done after the work was complete, I noted that the wall has encroached 3.4′ onto my neighbor’s property. The encroachment is not located in any accessible area and the wall is positive for both of us since it prevents soil erosion from our properties.

At the moment, I now live in a different state and plan to build my home on the South Carolina lot. I contacted my original South Carolina real estate attorney to help me figure out what we need to do to remedy the problem. He said it is a difficult situation since my neighbor’s bank where she has her mortgage holds title and he doesn’t think I can get a formal easement. The wall is a single huge single concrete structure and cannot be easily modified to remove the few feet encroachment.

What are your recommendations?

A: Make sure you keep all the paperwork from your purchase from the person that sold you the lot and also keep all the documentation from the contractor that built the neighbor’s home and the retaining wall.

If your neighbor ever complains about the wall, the neighbor might have trouble forcing you to remove the wall as the party that sold him his home or constructed the home on his property also constructed the wall.

There is a concept in the law that a person can’t complain about a situation if he watched it develop at a great expense to another individual and then request that the individual remove the structure once it is complete.

While you may be unable to get an easement from the neighbor with the lender’s consent, you might be able to get a written document from the neighbor that gives you the right to maintain the wall on the property in perpetuity. You might even be able to record that document and may be able to get certain rights that would be similar to an easement.

An easement is usually a document that is placed on the record title of one property owner that gives a neighbor certain rights to that property. In your situation, your easement would allow you to maintain the retaining wall on your neighbor’s property and you might have the continued obligation to maintain the wall. You should consult with a real estate attorney about drafting a document for you and to have the neighbor sign it.

While the neighbor’s property may be encumbered by a mortgage or trust deed, the easement may not be valid against the lender, but depending on where you live, the easement may be valid against the owner of that property and future owners of that property.

The difference between an easement and a license agreement in general may be that a license is a written document that may not be recorded against the title of someone’s property and a license in some cases can be terminated. You certainly don’t want the license to be terminated by your neighbor.

And, if you don’t get an agreement from the neighbor, you should keep a timeline as to the construction of the wall, the mistake made by the contractor that built your neighbor’s house and how no one objected to the construction of the wall during it’s construction. Hopefully, your neighbor will see the benefit of having the wall in it’s location and will agree to formalize the arrangement.