There are a number of types of disputes that can arise between adjoining landowners and involve specialized legal issues in litigation including, among others, boundaries, fences, obstruction of light, air or view, subjacent and lateral support, trespass, and nuisance. When neighbors are unable to resolve disputes by themselves, court action may become necessary.
An encroachment is the extension of a building or other structure beyond the boundaries of the land on which it was rightfully constructed onto adjoining land, or into its airspace, without the permission or consent of the adjoining landowner. Since the owner of the surface of the land also owns and has a right to use the airspace above the surface, an intrusion into the airspace of adjacent property may be an encroachment. The same may be true of the subsurface, where the owner of the fee simple estate also owns the subsurface. When an encroachment actually rests on adjoining land, it constitutes a permanent trespass. When the encroachment merely intrudes into the airspace above the adjacent property, it is not a trespass, but a nuisance if the owner of the burdened property is obstructed in the free use of his or her property. An encroachment usually is both a trespass and a nuisance.
Trees, Roots and Overhanging Branches
Tree ownership depends on location of trunk. A tree whose trunk stands entirely on one’s own property belongs exclusively to the landowner although its roots extend into the land of the adjoining owner. A tree whose trunk stands partly on the land of two or more coterminous owners belongs to them in common. Ownership of branches and roots that encroach on neighboring land. The owner of the tree based on the location of its trunk is the owner of the branches and roots of the tree. The owner of the neighboring property has the right to cut off the overhanging branches or the undercutting roots at the property line, but must act reasonably in doing so. Branches and roots of trees that encroach on another’s land and cause or threaten damage may constitute a nuisance. If the adjacent owner has a right of ownership in the branches, as distinguished from the mere right to cut them off to the extent that they “encroach” on his or her property, the adjacent owner also has an ownership right to the products attached to the overhanging branches.
A “party wall” is a wall that is shared and jointly used by adjoining property owners to support their separate buildings or improvements. The existence of a party wall is not determined by its location. It may stand partly on each of the adjoining properties or entirely on one of the parcels, and it may or may not be the common property of the two coterminous owners. Ordinarily, a party wall is created by an express agreement between the adjoining owners. However, a party wall agreement can be implied when it is fair and equitable or from the acts and conduct of the parties and the circumstances surrounding the construction of the wall, such that one owner is estopped from denying its existence against the other.
Under the Good Neighbor Fence Act of 2013, adjoining landowners are required to share equally in the responsibility for maintaining the boundaries and monuments between them. To be a division fence, the structure must be on the coterminous boundary. If it is completely on the property of one of the adjoining owners, it is not a division fence.
A spite fence is any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property, and is considered a nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance.
Views and Sunlight
As a general rule, a landowner has no natural right to air, light, or an unobstructed view, and the law is reluctant to imply such a right. However, a private agreement local city ordinance may grant an owner of real property a right to air, light or a view.