Daily Development for
Thursday, August 3, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
TRESPASS; "GOOD FAITH
IMPROVER" DOCTRINE: The remedy for an encroachment onto another party's
property when the encroachment is substantial is removal and not the conveyance
of the encroached property to the encroaching party even if the removal of the encroachment
will constitute economic waste.
Amkco Ltd., Co. v.
Welborn, 985 P.2d 757 (N.M. Ct. App. 1999).
A newly erected truck stop
encroached on adjoining property about 58 feet. The encroachment was not
discovered until after the building was completed and a new survey was required
by the lender for permanent financing. The building owner contacted the land
owner and attempted to purchase the additional property where the building
encroached but the property owner declined to sell the property or to trade the
property for a different 58 foot parcel adjacent to the owner's property on the
south. The building owner then brought an action for declaratory judgment seeking
an order requiring the property owner to convey the encroached upon property
for fair market value or for other equitable relief. The trial court entered a
judgment ordering the property owner to convey the encroached parcel for a sum
certain or to accept a deed for replacement property based on numerous factors
including, that the encroachment occurred due to a good faith reliance on a
incorrect survey and the cost of removing the structure would be disproportionate
to any damage to the property owner's property. The property owner appealed.
Generally the remedy for
alleviating an encroachment is the issuance of an injunction ordering the
removal of the encroaching structure. However, the district court should also
weigh the relative hardships likely to result from the issuance of such an
injunction. There are two central considerations to be reviewed by the court:
1) no one should be able to take another's land merely because he is willing to
pay for the land, as that would be considered private eminent domain and 2) the
amount of the economic waste entailed in destroying the encroaching structure.
The court found in this
situation that the encroachment was a large one, as it amounted to nine percent
(9%) of the owner's usable property. The court was unable to find support for
compelling the transfer of a substantial amount of property to the encroaching
landowner. Prior case law has ordered conveyance only when the encroachment is
slight and unintentional. The Court of Appeals held that the trial court had
abused its discretion by ordering the property owner to transfer the encroached
property and therefore the building owner must remove the encroachment.
Comment 1: As the editor
has studied comparative property systems in other lands, the editor is
continually struck by the very high relative value that the American system
confers upon exclusive private ownership. This reflects in part the rugged
concept of personal freedom with which America has always identified and in
part the confidence of the lawmakers in the marketplace to resolve problems of
maldistribution of resources. So long as we have evenly applied and predictable
laws, we have a good reason for this confidence. Despite the obvious fact that
the American marketplace is not perfect, there is ample basis from which to conclude
that the real estate market system does work efficiently.
Comment 2: Not all
jurisdictions have a "good faith improver" doctrine at all, and in
some of those jurisdictions where it does exist, the doctrine is the result of
a statute. Generally speaking, however, the statutes in this area confer
enormous discretion on the court to "weigh the equities" and allocate
rights accordingly, and this opinion, therefore, is useful in those jurisdictions
as well.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
Items in the Daily Development section generally are extracted from the
Quarterly Report on Developments in Real Estate Law, published by the ABA
Section on Real Property, Probate & Trust Law. Subscriptions to the
Quarterly Report are available to Section members only. The cost is nominal.
For the last six years, these Reports have been collated, updated, indexed and
bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6,
published by the ABA Press. The Annual Survey volumes are available for sale to
the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312)
988 5590 or mtabor@staff.abanet.org
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