Who Is Responsible for Rebuilding Boundary Wall if Encroachment Exists?
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In the case of an encroachment, a plaintiff may be awarded the fair value of the property that is encroached upon. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. Sometimes, the encroaching structure may be ordered to be removed or moved at the defendant's cost. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.
If a surveyor is negligent is surveying property, by failing to use the standard of care and skills typical in the profession, and that negligence causes harm to another, it is possible that the surveyor may be liable for all or part of a claim brought against the person harmed.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
I am assuming the agreement is motivated in part by a desire to protect against claims of future owners who are not a party to the agreement, and therefore may not be bound by it. There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.
When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.
To terminate an easement, a condition for the purpose of the easement must have changed, such as:
• Easement's purpose no longer exists
• Ownership of the easement and of the land where the easement is located merges into one owner
• Land owner releases the easement
• Easement is abandoned
• Nonuse (of a prescriptive easement)
• Adverse possession by the owner of the land where the easement is located
• Court judgment in a quiet title action
• Misuse of the easement
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
Courts generally assume easements are created to last forever unless otherwise indicated in the document creating the easement. Despite this, an individual granting an easement should avoid any potential legal or interpretive problem by expressly providing that the easement is permanent and utilizing appropriate words of inheritance. For instance, an easement may be created for a limited or conditional duration. An easement may also be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement to the owner of the servient estate. This release must be in writing.
The answer regarding who is liable for the cost of the rebuilt wall depends in part on when the walls were built, whether the sale of the property guaranteed clear title (such as in a warranty deed), whether a survey was done, and who was responsible for surveying the property. I suggest you have a local attorney review all the facts and documents involved.