What are my rights if someone else has encroached on my property?: North Carolina – South Carolina

Short Answer

In South Carolina, a property owner (or an estate that owns the property) can usually demand that an encroachment stop and, depending on the situation, seek a court order to remove it and/or recover damages. Common legal paths include a boundary/title lawsuit to determine the true property line and an action to recover possession if someone is occupying land without the right to do so. Timing matters because long, open possession can mature into an adverse possession claim, and South Carolina also has a 10-year limitation rule for actions founded on title.

Understanding the Problem

In South Carolina, an “encroachment” usually means a neighbor (or someone claiming through a neighbor) has placed or kept something over the boundary line—such as a fence, driveway, shed, or other improvement—so that it sits on land owned by someone else. The key decision point is whether the encroachment creates a real dispute about the boundary or ownership (who owns the strip of land), versus a situation where ownership is clear but someone is simply using or occupying the land without permission. When the property is part of a probate estate, a related question is who has the authority to act for the property owner while the estate is being administered.

Apply the Law

South Carolina typically addresses encroachments through property and title remedies in the Court of Common Pleas (Circuit Court). If the dispute is really about who owns the land (or where the boundary is), a quiet title-type action can be used to determine adverse claims. If the issue is long-term possession, South Carolina’s adverse possession rules and time limits can affect what relief is available and how quickly action should be taken.

Key Requirements

Ownership or a right to possess: The person bringing the case must have title to the property (or a legally recognized right to possess it), such as an estate representative acting for estate-owned real estate.
An adverse claim or wrongful use: The other side must be claiming an interest in the land (expressly or by conduct) or occupying/using it without a legal right.
Timeliness (avoid adverse possession/time-bar issues): Waiting too long can weaken the claim. South Carolina has a 10-year framework that often controls adverse possession and many title-based disputes.

What the Statutes Say

S.C. Code Ann. § 15-67-10 (Action to determine adverse claim/quiet title) – Allows a person in possession (or claiming title to vacant land) to sue to determine adverse claims and the parties’ rights.
S.C. Code Ann. § 15-3-350 (10-year limitation for actions founded on title) – Limits many title-based claims unless the claimant (or predecessor) was seized/possessed within 10 years of the act at issue.
S.C. Code Ann. § 15-67-220 (Adverse possession under written instrument; 10 years) – Describes when occupation under a written instrument or court decree can be treated as adverse after 10 years of continued occupation under claim of title.
S.C. Code Ann. § 15-67-250 (Adverse possession without written instrument) – Limits adverse possession without a written instrument to situations involving a substantial enclosure and usual cultivation or improvement.
S.C. Code Ann. § 15-67-90 (Reopening quiet title judgment; 3 years) – Sets a three-year period to challenge a recorded judgment/decree quieting title (with a minor’s extension).

Analysis

Apply the Rule to the Facts: If a neighbor has built or placed an improvement over the boundary line, the first legal question is whether the neighbor is asserting an adverse claim to that strip of land (for example, treating it as their own for years). If so, a South Carolina action to determine adverse claims can ask the court to decide the boundary/ownership and then order appropriate relief. If the encroachment has existed for a long time, the 10-year adverse possession and title-limitation rules can become central, so documenting when the encroachment began and how the land has been used matters.

Process & Timing

Who files: The titled owner, co-owners, or (in a probate situation) the proper estate representative with authority to act for estate property. Where: South Carolina Court of Common Pleas (Circuit Court) in the county where the land is located. What: A complaint seeking to determine adverse claims/quiet title and related relief (often including injunctive relief and, when appropriate, damages). When: As soon as the encroachment is confirmed, and before a long period of open, continuous possession creates adverse possession arguments.
Next step: The case typically requires evidence of the boundary and use history (deeds, plats/surveys, photos, witness history). The court process can include temporary relief requests in urgent situations, followed by discovery and a hearing or trial.
Final step: If the court determines the boundary/ownership, it can enter a judgment that resolves the adverse claim. When recorded, that judgment can stabilize title, and South Carolina law places limits on later attempts to set it aside.

Exceptions & Pitfalls

Adverse possession risk: If the encroaching party has openly possessed and treated the area as their own for a long time, the dispute may shift from “remove the encroachment” to “who owns it now,” with a 10-year framework often in play.
Boundary proof problems: Old deeds, missing monuments, and inconsistent plats can make the “true line” hard to prove. A current survey and a clear chain of title review often become critical.
Probate authority issues: When the property is owned by an estate, filing in the wrong name (or without proper authority) can delay the case and create standing problems. The estate’s representative may need to be the named plaintiff depending on how title is held and the stage of administration.

Conclusion

In South Carolina, an owner (including an estate that owns real property) generally has the right to challenge an encroachment by asking the Court of Common Pleas to determine the parties’ rights and, when appropriate, order relief that resolves the boundary/title dispute. The most important threshold issue is whether the other party is asserting an adverse claim that could mature through long possession. A key next step is to file a title/adverse-claim action in the county where the property sits before the 10-year limitation period becomes a major obstacle.

Talk to a Probate Attorney

If an encroachment involves property owned by a decedent’s estate, a probate attorney can help confirm who has authority to act, coordinate with a survey/title review, and work with litigation counsel as needed to protect the estate’s real property and timelines.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.