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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 118175
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Legally what does "The alteration of a permanent structure

Customer Question

"Legally what does "The alteration of a permanent structure results in a continuing trespass." mean? If an easement area prohibits the existence of a fence or structure in it, and one is placed within it, does that constitute or comprise a continuing trespass”? Please give some legal references and case law.
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
This means that there was a structure built on someone else's property without their consent. So if a garage or shed or fence is built on the neighbor's property without consent, that structure is considered to be trespassing on that property and because it is permanently attached the trespassing continues until it is removed.
The actor's failure to remove from land in the possession of another a structure, chattel or other thing which he has tortiously erected or placed on the land constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land and . . . confers on the possessor of the land an option to maintain a succession of actions based on the theory of continuing trespass or to treat the continuance of the thing on the land as an aggravation of the original trespass. See: RESTATEMENT (2nd) OF TORTS, § 161 cmt. b (1965).
Courts have stated in cases where structures or other objects constitute a nuisance by trespassing on land of another, the injury may be permanent if the nuisance may not be readily remedied, removed or abated at a reasonable expense. On the other hand, injury causing structures that can be changed or repaired at a reasonable expense have been found to be of a temporary nature which may allow for a continuing trespass theory. See: Piccolini v. Simon's Wrecking, 686 F. Supp. 1063, 1077 (M.D.Pa.1988).
So, a fence that is on the land of another, that can be changed, can be a continuing trespass. In addition to the continuing trespass, it is ALSO a breach of the easement, so it is a ground to seek removal for violating the easement under breach of contact.