A landowner builds a house that encroaches two feet on his neighbor's property. The encroachment involves very little land, but it creates many issues for the respective landowners. In today's society, where subdivisions are developed daily, there is an increasing potential for encroachments due to innocent mistakes, negligence, or willfulness. When an encroachment occurs, it would be terrific if the parties could negotiate a fair solution, but this rarely happens. This is because the law automatically places an encroaching landowner in an inferior bargaining position. In North Carolina, courts will order the encroaching landowner to remove the encroachment regardless of his intent. Therefore, the encroaching landowner must meet the neighbor's demands for waiving a mandatory injunction to compel removal or prepare to move the encroaching portion of the structure.
This Article addresses the public policy and equitable issues sparked by the encroachment of a permanent structure on an adjoining landowner's property. It focuses on the equitable hardship doctrine, which is commonly invoked by many jurisdictions in encroachment cases and applied when the circumstances of a given case justify superseding the landowner's ordinary remedy to an injunction-a doctrine which North Carolina has paid lip service to but does not apply. The analysis in this Article leads to the conclusion that in determining whether to grant an injunction, a court must balance the equities by assessing the relative hardship of each party. Application of the equitable hardship doctrine in encroachment cases will prevent economic waste, the potential for extortion, and unnecessary litigation, and create a just result for both parties.
Olivia Weeks, The Law Is What It Is, But Is It Equitable? The Law of Encroachments Where the Innocent, Negligent, and Willful Are Treated the Same, 39 CAMPBELL L. REV. 287 (2017).