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Injunctive Relief for Building Encroachment. Do I Have to Move the House?

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Former Counsel
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By Kevin Parker

When a land owner mistakenly builds a house or other building or structure that encroaches on a neighbor’s property, what is the remedy?  Does the offending land owner have to physically remove the structure from the neighbor’s property?   Is the harmed neighbor entitled to a mandatory injunction against continuing trespass?  Can the offending land owner invoke equitable “balancing of hardships” and simply pay damages?  In a recent case, the Supreme Court of Rhode Island distinguished the encroachment situation from traditional injunctive relief analysis.  (A court order requiring the offending land owner to remove the offending structure would be a mandatory injunction order.)  The general rule is that a party seeking injunctive relief must prove irreparable harm not remediable by damages.  Some courts blend the requirements for a preliminary injunction (e.g., balance of hardships) into the permanent injunction analysis.  Virtually all courts recognize the principle that land is unique and not fungible, so equitable remedies such as injunctive relief are normally available to prevent injuries and intrusions to it.  In Rose Nulman Park Foundation v. Four Twenty Corp., 93 A.3d 25 (R.I. 2014), the Rhode Island Supreme Court addressed a situation where a land owner mistakenly built a $1.9 million house across the property line, on the neighboring property (a park).  The home-builder’s
argument, of course, was that the encroachment was de minimis and therefore he should not have to move the house, but rather should simply have to pay the fair value of the land encroached upon – in effect buy that portion of the neighbor’s land and thus become the owner thereof.  The trial court granted a mandatory injunction ordering the house to be removed from the neighboring property.  The Rhode Island Supreme Court agreed.  In doing so, the Rhode Island Supreme Court commented:  “this Court has never stated – nor do we now hold – that a trial court is required to balance the equities before granting injunctive relief in a continuing trespass case.”  The Court went on to comment that “in exceptional cases, a court may deny injunctive relief.”  The Court found that the facts of the case did not qualify as “exceptional circumstances.”