Article by:
Olivia L. Weeks

39 Campbell L. Rev. 287 (2017)


North Carolina courts are unforgiving in decisions where permanent structures have encroached on an adjoining landowner’s property.  The law is simple: If the adjoining landowner requests a mandatory injunction to compel removal, a court will grant it.1  Everyone likes simple rules, but should a simple rule continue to apply when its application creates greater problems than it resolves?  Knowing that courts will grant a mandatory injunction to compel removal when permanent encroachments are at issue promotes unnecessary litigation.  It places plaintiffs in a strong bargaining position and creates the potential for extortion.  It results in waste if a defendant must remove a portion of the encroaching structure.  And, it rarely deters the willful encroacher but severely punishes the innocent one.

Although these cases involve “mighty little”2 in terms of the land involved, they create a great deal of trouble for the parties and the courts.  This is because of two competing ideals.  First, the law should not permit a party “to take [the] land of another merely because he is willing to pay a market price for it.”3 Second, courts should not sanction extortion and economic waste by ordering destruction of a structure innocently built on the land of another.4 Because these principles are inconsistent with each other, courts should seek resolution through a balancing of the hardships and equities.

Encroachments are characterized by the courts as renewing, continuing, or permanent trespasses.5As a general rule, North Carolina courts apply the law of continuing trespass to encroachments of permanent structures.6This allows plaintiff to seek a mandatory injunction to compel removal, which will be issued if plaintiff can show there is no adequate remedy at law and there is a real need for the injunction.7 This is not to be confused with the election of remedies for unjust enrichment, which allows the true landowner to elect to keep the structure and pay the builder the amount by which the structure increased the value of his property or demand the builder remove the structure and recover only actual damages to the land.8

Equity is the body of principles that represents what is fair and right;9therefore, in any equity action, the relative hardships to the parties and the equities between them are to be considered.10 Upon balancing the equities in encroachment cases, courts commonly deny relief to the aggrieved party in favor of money damages if the encroachment was made innocently and is slight compared to the injury to defendant if he has to remove it.11 An injunction is not granted simply because of the advantage to plaintiff or denied because of the convenience to defendant.12 The problem is one of relative hardships, which requires balancing all of the equities involved, including the relative hardships to the parties, the interests of third parties, and the interest of the general public.13 North Carolina courts discuss the relative hardship doctrine but refuse to apply it in cases where a permanent structure encroaches onto an adjoining landowner’s property.14

Since 1984, North Carolina courts have relied on Bishop v. Reinhold15 as precedent for all cases involving permanent encroachments.  Bishop involved a home that was built partially on the plaintiffs’ property.16 The original tract of land was owned by defendants, who conveyed a portion of the land to plaintiffs.17 While plaintiffs, a colonel in the Air Force and his wife, were stationed in various locations, defendants built a new home partially on plaintiffs’ property.18 Plaintiffs sued for removal of the house.19 At trial, the jury awarded damages, finding that defendants had wrongfully trespassed on plaintiffs’ property and the trespass was continuing.20 Defendants appealed, and the appellate court stated—in order to avoid multiple actions—the trial judge can order “equitable relief in the form of a permanent injunction” which would allow a single recovery for all damages.21The court remanded the case to the trial court and ordered the court to grant a mandatory injunction for the removal of the parts of defendants’ home encroaching onto plaintiffs’ property.22  In this case, the court did not discuss or even mention the relative hardship doctrine.  Although cases prior and subsequent to Bishop discuss the doctrine, courts consistently follow the holding and rationale in Bishop whether the encroachment was innocent, negligent, or willful.23

This Article argues that the holding in Bishop should no longer be the guiding star of the North Carolina courts.  Instead, courts should apply the equitable hardship doctrine in encroachment cases to determine whether a mandatory injunction for removal is inequitable under the circumstances of a given case.  Part I discusses the characteristics of continuing and permanent trespasses, how the characterization of each determines the remedies available to the parties, and the statute of limitation that applies to each.  Part II discusses the equitable remedy for encroachments of permanent structures, a mandatory injunction to compel removal.  It will show that courts should balance the equities of the parties before issuing an injunction.  Part III gives an overview of the relative hardship doctrine, how the doctrine is distinguishable from the betterments doctrine, and how and why courts apply the relative hardship doctrine in other jurisdictions.  Part IV examines the rationale given by North Carolina courts for granting mandatory injunctions without applying the relative hardship doctrine and how subsequent cases apply that rationale.  Finally, Part V discusses why North Carolina courts should apply the equitable hardship doctrine and how its application can prevent economic waste, potential extortion, unnecessary litigation, and result in a just remedy for all parties involved.

An encroachment is an interference with or invasion of another person’s property.24  This Article limits encroachment to an intrusion by a landowner onto the property of his neighbor by a permanent structure such as a house, a shed, or a fence.  This Article also presumes that the neighbor entitled to a remedy holds superior title to the property in dispute.


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