Addressing Encroachments in Arizona Boundary Disputes

Boundary disputes can be a source of conflict between neighbors. They often arise when a property owner builds a structure or places a feature, like a fence, wall, or shed, that crosses over the legal property line onto another person’s land. In Arizona, encroachments and boundary disputes are governed by state statutes, case law, and equitable principles. Understanding how Arizona law addresses these disputes is essential for homeowners and developers.

What Is an Encroachment?

An encroachment occurs when a structure or other improvement extends beyond the property line, invading a neighbor’s land without permission. This can include fences built over the property boundary, tree branches or roots growing into a neighboring yard, driveways that extend onto another’s property, and buildings or additions that cross the line separating two properties.

Encroachments may be accidental, often resulting from an inaccurate survey, or can be
intentional due to a mistaken belief about the actual boundary.

What Laws in Arizona Are Related to Boundary Disputes?

Boundary disputes and encroachments in Arizona fall under property law, which includes the principles of adverse possession, prescriptive easements, and equitable remedies. These laws balance property owners’ rights with practical solutions in complex and emotional disputes. Understanding these laws is important for property owners, as the outcome can lead to changes to property boundaries, granting use rights, or financial compensation.

Adverse Possession

Title to property can be sought via a claim for adverse possession, pursuant to Arizona Revised Statutes Section 12-521(A)(1).

A number of elements need to be proved for such a claim, where a party must show: (1) actual and visible appropriation of the land; (2) the appropriation was continuous and for at least ten years; and (3) the appropriation commenced under a claim of right hostile to and inconsistent with the claim of another. There is well-established case law on these elements and others. 

The time to pursue a claim needs to be carefully considered and can vary depending on the nature of the claims. ARS Section 12-526(A) references peaceable and adverse possession and ten years. However, ARS Section 12-522 requires a two-year window for a claim if it is based on possession only. To further complicate the analysis, a claim for peaceable and adverse possession under color of title shall be commenced in three years, as per ARS Section 12-523(A). Whereas ARS 12-525(A) requires a five-year window to bring a claim in an action to recover real property from a person in peaceable and adverse possession when using the property, paying taxes thereon, and making a claim under a deed.

To fully appreciate a claim for adverse possession requires a consultation with an attorney to properly analyze the above and any other or applicable element.

Prescriptive Easements

A prescriptive easement grants a person the right to use another’s property without owning it. Unlike adverse possession, this does not transfer ownership but allows continued use. To establish a prescriptive easement in Arizona, the claimant must show that they have used the property for at least 10 years in the open without permission and in a continuous manner. This often applies when someone routinely crosses a neighbor’s property for access.

Easements and Way of Necessity

Easements allow access to the land of another for a specific purpose. This can happen in various ways, including prescription, implication, or way of necessity.

For an easement by implication, one must show: 1) a single tract of land so arranged that one portion of land derives a benefit from the other; 2) unity of ownership; 3) division of the land into two or more parcels; 4) long, continued, and obvious use of the land to a degree that establishes permanency; 4) the use of the easement must be essential to the beneficial enjoyment of the land to be benefitted. This can occur with a conveyance, and, again, there is established case law on how courts analyze these issues.

An easement by way of necessity, simply, is when there is no way out. There is a body of common law that speaks to the required analysis here, too. In general, there must be a reasonable necessity present at the time that the original estate(s) were severed; often, a parcel was sold or divided, and the purchaser(s) were granted ingress and egress over a parcel that was retained by the original owner.

Equitable Remedies

Arizona courts are charged with creating equitable remedies in encroachment cases. The court may use a court order to require the removal of the encroachment, compensation for the loss of use or diminished property value, and adjust property lines if both parties agree or if an equitable solution demands it. Sometimes, a court may require the encroached-upon owner to sell the affected portion of their property to the encroacher, especially if the removal cost of a structure is high.

How Can Boundary Disputes in Arizona Be Resolved?

If you are involved in a boundary dispute, there are proactive steps you can take.

Obtain a Professional Survey

The first step in resolving a boundary dispute is to hire a licensed surveyor to define the property’s boundaries. This will determine if an encroachment exists and provide a basis for negotiations. A professional survey ensures its accuracy and prevents further conflict. A surveyor’s report can be valuable evidence if the dispute goes to court.

Communicate with Your Neighbor

Discuss the issue with your neighbor before taking the matter to court. Encroachments may happen due to honest mistakes and might be resolved through compromise. Approach the conversation calmly, present any survey results, and express a willingness to find a fair solution. Effective communication can often lead to an informal agreement, saving time and legal expenses.

Mediation or Arbitration

If negotiation fails, mediation can be a cost-effective way to settle disputes without litigation. A neutral third party can help both sides reach an acceptable solution. Though slightly more formal, arbitration offers a legally binding resolution without requiring a lengthy court battle. These alternative methods help preserve neighborly relationships while addressing the issue.

Legal Action

Property owners can file a lawsuit seeking a court-ordered resolution when all else fails. Remedies may include an injunction to remove the encroachment, damages for property loss, or recognition of an adverse possession. Legal action should be a last resort but provides an alternative when other methods are unsuccessful. An experienced real estate attorney can work to strengthen your case and guide you through the complexities of property law.

How Can Future Encroachments Be Prevented?

Preventing future encroachments involves proactive measures. Obtaining accurate land surveys and marking property boundaries with fences or signage before construction reduces the chance of encroachment. Before significant improvements near the lot, consult an attorney to establish written agreements with neighbors for shared uses or boundary adjustments. These steps help minimize misunderstandings and protect property rights.

Resolvere Law PLLC Is Ready to Protect Your Property Rights

Whether an encroaching fence or an unclear property line, boundary disputes can be stressful and complex. Resolvere Law PLLC helps Arizona homeowners, developers, and landowners resolve boundary disputes. We provide personalized legal strategies, from neighbor negotiations to court action, to ensure your land is protected. Don’t let a boundary dispute put your property at risk. Let us fight for a fair resolution. Contact Resolvere Law PLLC today at 480-568-1327 for a no-obligation case consultation and take the first step toward protecting your property!