When a building or other structure extends past a property line onto, over, or under the adjoining property, an encroachment occurs. Some encroachments are obvious and appear on the survey. Sometimes encroachments are less obvious, such as a septic tank drain field that crosses a property line but is underground and not visible until, for example. the neighbor digs it up while installing a swimming pool. There are six primary reasons encroachments occur:
1. Improper survey: An error is made with the location of the property boundary. and as a result of this error construction is completed in the wrong place.
2. Miscalculation during construction: Measurements in plans are misread. property lines are incorrectly drawn, or another mistake is made that unintentionally results in the encroachment.
3. Division of property after structures are in place: A property owner cuts up a farm or other property for sale as separate lots, and one or more of the buildings encroach over the new property hues.
4. By design: A building may extend across a boundary on purpose to serve the needs of both property owners or for some other reason. This may have been okay at the time the encroachment was created, but a problem can exist for new owners unless an easement was granted for the encroachment.
5. By nature: If a property line is a natural boundary such as a river, a change in the river can create an encroachment.
6. Due to regulation changes: If there has been a change in setback requirements. it is possible that an existing building may be in violation of the new rules. When an encroachment occurs without the property owner’s permission. legal proceedings may be initiated by the owner of the property being trespassed. All investors need to be sure before they buy a property that there are no encroachments onto other property.
In many communities, building plans are reviewed carefully for compliance to 11cc protection codes. Because fire protection has improved due to new technology and more stringent fire codes, most structures over 10 years old may not meet the current regulations. Unlike other building codes that may allow the structure to be grandfathered “as is” without the requirement to upgrade to current standards, most fire codes become absolute requirements. and many unsuspecting investors have discovered, after the closing, that the state requires their newly purchased building to have lire sprinklers installed in every enclosed space within the building. And it may not be just the cost to bring the building to current standards that hurts-this kind of construction can require the closing of the building for a period of time, which may mean the loss of income from rents when the new investor needs it the most. Worse still, the building may take some time to recover the possible loss of tenants. Normally when there is a major change in a fire code that would require an existing building to install fire sprinklers, the owners are given several years to comply. A property owner who has not complied in hopes of selling the property to save a $50.000 cost, for example. may be a highly motivated seller. If this is the reason for the sale, and the investor knows of the area code regulations. then he or she need only take the future cost into consideration when negotiating for the building.
Green Area and Landscaping Requirements
There is a growing trend for cities to require more green space and landscaping around buildings. Green area is the amount of land area that cannot be used for anything except landscaping or sometimes water retention (ponds or lakes). This is often stated in the form of a percentage of the property-for example, “25 percent of the land must be green area. in sonic circumstances it may be possible to use this green area or to design it to be functional, such as gardens that separate buildings, tennis courts, putting greens. and other public areas for apartment buildings. Sometimes the required green area is a calculation based on several factors, such as the square footage of the building and/or its use. Landscaping requirements can be very detailed, even to the exclusion of certain kinds of plants or the requirement for specific plants to be used. Because many communities are trying to improve the aesthetic nature of some commercial areas, in particular vast parking lots, it is possible that an investor may suddenly discover a city requirement to plant trees and other landscape areas around the parking lot that serves a just-acquired shopping center. This is another time bomb expense that is easy to check in advance.
On-Site Water Retention
As storm drainage is often inadequate to handle major rainfalls. many communities have enacted strict water retention rules. What this means is that a property must be able to provide on-site percolation of rainwater when adequate drainage to a storm system is not available. It is surprising how much area it takes to accomplish this, and many projects are not economically viable to meet the needs of these codes.