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Real Estate Encroachment Disputes: Part 2

In last week's Blog article we discussed the basic nature of real estate encroachment disputes.  In this week's article we discuss the law governing such disputes in more detail.  Buffington Law Firm's real estate trial lawyers recommend that if you are involved in a real estate encroachment dispute that you not take action yourself without legal advice.  These disputes can be both emotional and tricky, and good legal advice can prevent escalation of the dispute and also avoid further legal problems.

Many real estate encroachment disputes essentially involve a claim by one side of Adverse Possession: a claim that because one side has openly, notoriously, and with hostility occupied certain property for a long time, that the hostile party is now entitled to own the property. [Thornton v. Stevenson (1960) 185 Cal. App. 2d 708, 713]. In such a suit, a Plaintiff may allege that he or she acquired title by adverse possession. [Williams v. City and County of San Francisco (1938) 24 Cal. App. 2d 630, 633]. Accordingly, the Plaintiff must show: a) that the Plaintiff is the true owner of the disputed property; b) that Plaintiff is in possession of the disputed property; and c) that the Defendant claims an adverse interest without right. [Thornton, 185 Cal. App. 2d at 713].

In California an adverse possession claim can often be defeated.  The elements are complex, and are strictly enforced by Courts.  Plaintiffs often bring lawsuits for both Adverse Possession and for a "Prescriptive Easement" which will give the Plaintiff the right to use another person's property notwithstanding the fact that the Plaintiff does not own the property.  Claims that a Plaintiff has a right to use a driveway on another person's property, or a pathway or road on another's property, are typical examples of Prescriptive Easement claims. 

Prescriptive easement claims are often misused by lawyers and frequently lack legal validity -- lawyers sometimes try to assert a Prescriptive Easement claim when they cannot satisfy the strict requirements of Adverse Possession.  (This happened in a recent case that our Firm defended against.)  When the use that the Plaintiff asserts is exclusive, i.e. the Plaintiff is really trying to gain ownership of the land, a Prescriptive Easement cause is inappropriate.  An important California case, Silacci v. Abramson [(1996) 45 Cal. App. 4th 558] established this. In Silacci the Court of Appeal distinguished between a prescriptive easement and adverse possession, and held that when the use asserted by the Plaintiff is essentially exclusive, the Plaintiff must proceed under the doctrine of Adverse Possession, and may not seek a prescriptive easement in the context of exclusive use.[1] [Silacci 45 Cal. App. 4th at 563-564].

Real estate encroachment cases, while sometimes legally complex, can often be resolved economically and quickly.  If you believe that you have such a case, either to assert or to defend against, we invite you to speak directly with an experienced real estate litigation attorney for a free legal consultation.


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