Is home encroaching on easement an issue?

Q: My house was built 2 feet into the utility easements. There is a utility pole with electric transmission wires 3 feet from the back of my house. If the pole should need to be replaced, would the utility company be able to place it in the same spot? — William

A: Yes, and you might have other concerns. An easement is a legal term for when one landowner gives another party, often a utility company,

the right to enter or use part the property for a specific pur- pose. Common easements are for water pipes and electric poles. Most easements “run with the land,” meaning the easement will pass from one property owner to the next, and many people don’t even realize they have easements crisscrossing their yard. In fact, the easement you are dealing with was likely granted several owners ago, before your house was even built.

When part of a structure that is built on your land crosses an easement, it is called an encroachment because the structure is encroaching on the easement holder’s rights. Because easement holders have the right to use the space for their specific purpose, such as running power lines, they are able to enforce their right by making you remove the encroaching structure.

Usually, this is not that big of a deal — for example, if a fence or the corner of your pool deck is the encroaching structure. But because part of your house is doing the encroaching, this could be a big problem for you.

First, make sure there really is an encroachment, and that it isn’t a surveying mistake or an easement adjusted or removed when the house was built years ago. If the encroachment still exists, check your title insurance policy, since it will cover the cost of repairing an encroachment not found when you bought your home. Be aware, though, encroach

ments are often found before closing, and excited homeowners waive coverage because they are eager to close and don’t expect an issue, so your title policy may have a stated exception for this. If so, you will need to try to try to work things out with the utility. Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. Contact him at sunsentinel.com/askpro or follow him on Twitter @ GarySingerLaw.