Life and the Law | A further look at encroachments on your land by adjoining owners

In July 2019, I detailed the remedies when faced with a surveyor’s identification report which shows an encroachment either by your neighbour or yourself.

The discourse on the matter of encroachments, however, would be incomplete if we did not also include the grant of an easement as a remedy. This is, therefore, a follow up to detail a remedy, the costs of which could also be significantly less.

An easement is a right of one party to use the property of another party by paying a fee to the property owner. This remedy would see the owner of land granting an easement to the person encroaching on his land.

This approach is a viable option, because, effectively, the person enjoying land would receive a right or privilege from the owner to continue to enjoy this land for a period usually of 99 years, in perpetuity, or such other period as determined by the grantor.

Usually, the cost is as minimal as $1, because, by its nature, the easement gives a privilege without profit in the form of money. The easement would be granted traditionally through a Deed of Easement, but, more appropriately, now through a transfer to grant an easement, both of which would be prepared by an attorney-at-law.

The documents would give the adjoining owner who is encroaching, the right to continue to enjoy the land being encroached on and would also state the extent of the area; for example, a distance of three feet, etc. For the avoidance of any doubt, a sketch diagram would be submitted with the application showing the exact area involved. There is, however, no requirement to obtain a prechecked survey diagram for the area.

Through the transfer for the grant of an easement, the person encroaching would enjoy rights over the land of another for the stated period, which shall run with the land and bind the heirs, successors, personal representatives of the grantor of the easement and the person getting the easement.

The transfer must be signed by the owner of the land being encroached on and by the person encroaching. The transfer must also be stamped at the Stamp Office. Because the area of land is usually small, the value would be nominal and so, too, would be the assessment of transfer tax and stamp duty.

Thereafter, the transfer to grant an easement would be lodged at the Titles Office with the title for both landowners, along with the applicable registration fees. The registration fee for the transfer to grant an easement at the Titles Office is $5,000, and $1,000 would be payable on each additional title submitted with the application.

Registrar’s endorsement

The registrar is able to accept the documents and to make an entry on title by virtue of Section 93 of the Registration of Titles Act. Careful reading of that section will disclose that the registrar is only able to endorse an easement on title in the context of a lease, or a transfer. It is for this reason why the transfer to grant an easement is the appropriate form. The form is readily available on the National Land Agency website.

Once approved, the easement is entered as a miscellaneous instrument on the grantor’s title. In relation to the grantee’s title, it is treated as a transfer of the interest of the grantor to the grantee in the specific area, the subject of the encroachment for a period of years with full right of access by the registered owner to the land.

This remedy will require the agreement of the person benefiting from the encroachment as they will need to sign the transfer. The person benefiting from the encroachment will also need to make their original title available to enable the grantor of the easement to register the easement and transfer, respectively, on both titles.

Encroachment on land being mortgaged

Where the land being encroached on is the subject of a mortgage, a Consent of Mortgagee will be required to enable the registration to proceed. This writer has seen where a mortgagee has given its consent to the registration of an easement such as this, and rightly so, because the easement is a legal right which removes the knotty issue of the encroachment, as the grantee now has permission to occupy the land.

In the event of the sale of the property of the grantor of the easement, it is my opinion that a surveyor, guided by the endorsements on the title of the grantor and grantee, ought to remark concerning the easement as the ‘remarkable occurrence’ in relation to the title, but ought not to reflect the encroachment as an offending finding or a finding requiring remedying. Hence, a mortgagee should feel no disquiet in relation to the encroachment in that context.

It is hoped that through this article, there will be greater resort to this remedy so that mortgage companies, over time, can advise themselves and establish a policy that will see titles reflecting encroachments, which are addressed through the grant of an easement as good security.

Karene Stanley Jones is the managing partner at Karene N. Stanley & Company, attorneys-at-law. Email feedback to knsjones@knscolaw.com.