Legal Question in Real Estate Law in District of Columbia

Re: Hidden Encroachment

Well, I think a negotiated settlement is better, and suggest you agree on a qualified professional mediator as a neutral party.

There are statutes in California that provide some protection to a "good faith improver" of real property, who thinks he is working on his own property when he's really encroaching or trespassing. You (and the neighbor too) should become familiar with Code of Civil Procedure sections 871.1 through 871.7. See also Civil Code section 1013.5. The effect of these laws is to give a court authority to do a "balancing of the hardships" and make orders and decrees that do not excessively punish the good-faith improver for an innocent mistake, but at the same time gives the victim of the encroachment some relief, often damages, short of ordering the removal of the improvement.

Note that there is a technical distinction between what's covered by the statutes cited and the traditional common-law rules governing remedies for encroachments. Your case may fall under the statutes, or it may be an encroachment that comes under the common law - it's complicated by the additional fact that the neighbor didn't think he owned the land, he thought he was on a third party's land under an easement right. However, the statutes and the common law will produce more or less the same result.

Here's a headnote from a case I found on the subject of encroachments off of easements onto the land of another: "Where landowner in constructing road on railroad land upon which he had a right-of-way acted in good faith and encroachment on unusable land of another was minimal, prudent employment of equitable doctrine by denying removal of encroachment, allowing damages where encroachment did not do irreparable injury and imposing a servitude on land encroached upon was possible if, on remand and taking of additional evidence, the court was assured that an appropriate counterbalance was effective."

The case citation is Donnell v. Bisso Bros. (1970) 10 Cal.App.3d 38.

Re: Hidden Encroachment

Yes, if this is DC property, I would suggest that you send the encroacher

a certified letter(return receipt requested with copy sent regular first class mail)that he has 30 days to remove his leachfield (with whatever lines or other accessories that may attend it)from the designated boundaries of your property or you will have to do it for him.

Then, if the 30 days comes and goes without the required action on his part, you should proceed to make good on your promise.(Make sure that you retain a copy of your notice for your record.)