Building & fences
What happens if I build on an easement?
The holder can usually require the structure to be removed at your expense, and your title insurer generally will not cover the loss because the easement was disclosed as an exception.
The first consequence is often administrative: the building department refuses the permit, or catches the encroachment at inspection. That is the cheap version, because nothing has been built yet.
The expensive version arrives later. A utility needing access, or a neighbor whose driveway right you paved over, can seek an injunction. Courts weigh the hardship, but the general rule is that an encroaching structure inside a valid easement comes out, and the owner who built it pays.
It also becomes a title problem you carry to closing. Buyers, lenders and insurers all flag structures inside easements, and clearing it usually means a recorded encroachment agreement from the holder or physically moving what you built.
What this looks like in practice
The outcome depends enormously on when the mistake is caught. Discovered at permit review, it is a redesign. Discovered at a resale inspection five years later, it is a title objection that has to be cleared before closing, usually under time pressure with the buyer's lender watching.
Holders are not uniformly hostile. Utilities routinely sign encroachment agreements for driveways, patios and light structures, typically with conditions: you remove it on notice, you bear the cost, and you assume the risk of damage during maintenance. What they rarely accept is a habitable structure over their facilities.
What to do next
- 1Stop work and get the corridor surveyed and staked before spending anything else.
- 2Contact the holder and ask directly whether an encroachment agreement is available.
- 3If it is not, redesign to clear the corridor, moving a foundation is cheaper than litigating it.
- 4Record any agreement you obtain, so the next buyer inherits a documented arrangement instead of a problem.
What to look for
- The exact recorded corridor located by a surveyor before construction, not the plat scaled by eye.
- Whether the holder will sign an encroachment agreement, some will, for a fee and with removal conditions.
- Your title policy's Schedule B, which almost certainly lists the easement as an exception.
- Whether the structure is permanent or removable; decks on piers are treated differently from slabs.
Questions people ask next
Will my title insurance cover it?
Generally not. The easement will be listed as a Schedule B exception, and exceptions are exactly what the policy does not insure. A structure you built inside a disclosed easement is your risk.
What if the previous owner built it?
The encroachment runs with the land, so it becomes your problem at closing. That is why an inspection walk should compare visible structures with the easements listed in the commitment before you close, not after.
Can the holder really force removal years later?
Yes in most cases. Delay can matter under equitable defenses in some states, but relying on a holder having slept on their rights is a weak position compared with getting written consent.
General educational reference only. Prescription periods and their exceptions change, and several states set the period by case law rather than by statute. Read the linked official code and consult a licensed attorney in that state before relying on any of it.
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