Daily Development for
Wednesday, April 17, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ADJOINING LANDOWNERS; ENCROACHMENT; REMEDY. Where a landowner innocently encroaches on adjoining property in the erection of a building, the court may properly refuse to order removal of the encroaching structure where the degree of occupancy is comparatively insignificant and does not interfere with the value or use of the rest of the adjoining lot.

Urban Site Venture II Ltd. Partnership v. Levering Associates Ltd. Partnership, 665 A.2d 1062 (Md. 1995). The encroaching owner had obtained a survey of its site to determine where to locate its building. When notified that the building encroached on an adjoining property, the owner stopped work and had the surveyor double-check its survey. Based on this investigation, the owner concluded (incorrectly) that the building did not encroach and resumed construction. At trial it was proven that (1) the structure encroached 1.3 square feet on the adjoining property, (2) the value of the occupied property was $200, and (3) the cost of removing the encroachment was $500,000.

The Maryland Court of Appeals held that one must prove that one was an innocent encroacher by a preponderance of the evidence, not by "compelling evidence." The evidence of the owner's care in securing surveys to locate the building prior to construction and stopping work to check the accuracy of its survey showed that it had acted in good faith and was an innocent encroacher. Although an injunction and removal of the encroachment is the preferred remedy, the trial court properly applied the doctrine of comparative hardship in this case to determine that the encroachment did not adversely affect the continued use and enjoyment of the adjoining property and awarded damages for the continued encroachment.

See, also:Goulding v. Cook, 645 N.E.2d 54 (Mass. App. Ct. 1995). (Court may deny an injunction to remove an encroaching septic system installation when title to the affected parcel previously was subject to honest dispute, removal of the system would render the parcel served by the system unbuildable, and the hardship imposed upon the parcel encroached upon is proportionately much smaller.)

Comment: Although we like to say that, in theory, possession is the hallmark of property ownership and ownership is absolutely protected in our system, we know that many practical compromises are necessary to make the system truly fair and socially acceptable. These cases contain the seeds of a doctrine that could do great mischief to our system of private investment - they justify judicial discretion to refuse to protect property boundaries in cases where the owners are innocent of any wrongdoing or even carelessness. But absolute rigidity of rules leads to unacceptable tyranny, and limited judicial discretion in remedy is necessary to avoid an overly harsh regime.

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. This item, however, has not been. It is an April Fool story. But no one ever reads this fine print anyway. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. Contact Laprica Mims at the ABA. (312) 988 5260.

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