What Happens When a Survey Reveals an Encroachment or Easement?

A Line on a Map, A Fence on the Ground

The fence between your dream home in Arlington and the neighbor’s property has been there for twenty years. It’s a lovely, weathered cedar fence, dividing a carpet of green lawn on your side from a flourishing vegetable garden on theirs. During the home inspection, you barely noticed it. But now, the survey has come back, and it seems that this beloved fence is sitting six inches over the legal property line—on your new land. Suddenly, a charming feature feels like a complication. What happens when a survey reveals an encroachment or easement?

It’s one of the more quietly stressful moments in a home purchase. You see a physical object—a fence, a retaining wall, a paved driveway—and a piece of paper that says it shouldn’t be there. The immediate fear is one of conflict and cost. Does the fence have to be torn down? Do you have to have an awkward conversation with your future neighbor before you’ve even moved in?

Often, the answer is no. The real issue isn’t the physical object itself, but the story the paperwork tells about it. A survey is like a property’s X-ray. It reveals the underlying structure, the legal “bones” of the lot, which may not perfectly align with the visible “flesh” of how the land is being used. An encroachment is a fracture on that X-ray you didn’t know was there. Our job, as your settlement team, is not to prescribe surgery, but to read the X-ray correctly and find the right way to heal.

Encroachments vs. Easements: A Tale of Two Boundaries

Before we go further, it’s crucial to distinguish between these two common findings. Though they both involve the use of property, they are legally quite different.

An encroachment is a structure that physically intrudes upon another owner’s land without their permission. That neighbor’s fence sitting six inches on your side is a classic encroachment. So is a corner of a garage, a retaining wall, or even an air conditioning unit pad that was poured over the property line. It’s an unauthorized occupation of space.

An easement, on the other hand, is the legal right to use another person’s land for a specific, limited purpose. You still own the land, but someone else has a right to cross it or use a portion of it. Common examples in the DMV include:

• Utility Easements: The most common type. This gives companies like Dominion Energy in Virginia or Pepco in D.C. and Maryland the right to run lines across your property and access them for maintenance. These are almost always recorded in the land records.
• Easements for Access: Think of a shared driveway in a dense D.C. neighborhood like Capitol Hill, or a private road serving several homes in a more rural part of Loudoun County. Without a formal, recorded easement, the person whose property is being crossed could theoretically block access.
• Prescriptive Easements: This is a more complex category, where an easement can be created through long, continuous, and open use without the owner's permission. It’s an easement born from habit, and it can be a source of significant conflict.

When a survey is performed, it’s mapping the physical reality against the legal record. If it finds a utility pole, it checks for a corresponding recorded utility easement. If it finds that shared driveway, it looks for the legal agreement that governs its use. The problem arises when the physical use and the legal paperwork don’t match.

The Resolution is Paper, Not Pavement

So, your survey reveals the neighbor’s shed encroaches on your land by a foot. What happens now? This is where the process moves from the surveyor’s field notes to the settlement attorney’s desk. The core insight here is that most of these issues are resolved with legal documents, not construction equipment.

Here are the common pathways to resolution:

1. The Encroachment Agreement: This is often the simplest solution. You and the neighbor sign a legal document that acknowledges the encroachment. The neighbor is granted permission for the structure to remain, but you, as the landowner, retain full ownership of the land it sits on. The agreement usually states that if the structure is ever destroyed (say, the shed burns down), it cannot be rebuilt in the same encroaching spot. This document is recorded in the land records, putting the issue to rest for all future owners. It turns an unauthorized use into a permitted one.

2. The Easement: If the encroachment is something necessary, like a portion of a shared driveway, the solution might be to create and record a formal easement agreement. This grants the neighbor the legal right to use that specific piece of your property for that specific purpose.

3. Removal: While it’s the first thing everyone fears, moving the encroaching structure is often the last resort, typically only for significant intrusions or when an agreement can't be reached. For minor issues, it’s rarely the most practical or cost-effective path.

The key is that an unresolved encroachment creates a “cloud” on your title. Title is the legal concept of ownership, and you want your title to be “clear,” meaning free from doubt or dispute. A lender won’t want to secure a mortgage with a property whose boundaries are in question. This is why your title insurance company is so involved. A standard policy often has an exception for “matters an accurate survey would disclose.” However, an enhanced owner’s title insurance policy, which we typically recommend, may offer coverage for certain types of forced removal of an existing structure due to encroachment, subject to the policy’s terms. This can provide significant peace of mind.

The DMV Difference

How these situations play out can vary slightly across D.C., Maryland, and Virginia. The legal principles are similar, but local custom and the density of development play a role. In D.C.’s historic districts, for example, “adverse possession”—gaining title to land by using it openly for a statutory period (typically 15 years in D.C.)—can be a factor in very old encroachment disputes. In Maryland, where settlements are overseen by attorneys, these discussions are part of the legal process from the outset. In Virginia’s sprawling suburbs, access easements for private roads or stormwater management are common and usually well-documented.

A Map for the Way Forward

Seeing an encroachment on your survey can be unnerving. It feels like you’ve discovered a problem baked into the very land you’re about to own. But it’s better to think of it as simply discovering a feature that wasn’t on the original map. The survey doesn’t create the problem; it illuminates it so that it can be resolved.

With the right approach, that fence line or shared driveway doesn't have to be a source of future conflict. It can be an opportunity to create clarity, to transform an unwritten assumption into a clear, legally sound agreement that protects your investment and ensures peace of mind for years to come. That’s the real work of a settlement—not just transferring a deed, but ensuring the title is sound, the boundaries are clear, and you can move into your new home with confidence.

If a survey has raised questions about your potential new property, let's talk. Our team at TTG Title Group is here to help you read the map and chart the clearest path forward.