By: Roger J. Buffington, Esq.
Buffington Law Firm’s real estate dispute attorneys have dealt with numerous cases in recent years dealing with encroachments and boundary disputes. In the context of a homeowners’ dispute these are often situations in which one party either deliberately builds structures on, or otherwise takes possession or control over, the real property of another. The most common scenario often involves someone building a boundary fence or wall that does not, in fact, follow the actual surveyed property line boundary between the two properties. Sometimes it is a prior homeowner who did this. Not infrequently, this was done by accident and was not intentional. But after many years have passed the homeowner who owns the encroaching property has come to regard the fenced-in property as belonging to him or her. Once the adjoining property owner who actually holds title to the encroached space finds out about it, this person makes a demand that the boundary structure be moved or removed, thereby restoring the encroachment space to its rightful owner. The encroaching property owner often announces that he or she will claim a “prescriptive easement” or claim a right of “adverse possession.” This pattern is the genesis of many property line encroachment disputes.
California law does not favor encroachments and makes it difficult for an encroaching property owner to legally obtain an actual easement or quiet title by right of adverse possession. The law governing such disputes is complex, but usually resolves against the encroaching party. California law does not recognize “fencing easements” whereby a party claims ownership or an easement granting possession by virtue of having fenced in another party’s property for a long period of time. The cases of Mehdizadeh v. Mincer [(1996) 46 Cal. App. 4th 1296] and Silacci v. Abrams [(1996) 45 Cal. App. 4th 559] both provide authority that merely having fenced in the property of another and held it for a lengthy period of time does not give rise to ownership or an easement.
It is important to understand the difference between an easement and outright possession, as people embroiled in a dispute often misunderstand the difference. An easement, if valid, gives the owner or possessor of a non-owning parcel certain limited rights of use of the land of another (the “servient parcel”). For example, an easement may exist giving one parcel the right to transit a road or driveway owned by another parcel to access a public road. Obtaining quiet title, by contrast, normally means claiming outright ownership to be perfected by record title, usually by a claim of adverse possession. [Sillacci v. Abrams 45 Cal. App. 4th at 562 (discussion of easement versus ownership)].
California generally assumes that the actual property boundary is known or at least easily knowable by the parties, and defers to the actual boundary for determination of ownership. “The common theme of these … [various court] … decisions is a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation.” [Mehdizadeh v. Mincer[(1996) 46 Cal. App. 4th 1296, 1303 (citing and quoting Bryant v. Blevins)]. While there are earlier doctrines such as the “agreed boundary doctrine” that can sometimes apply to a claim involving this kind of situation, generally in California they do not, because the modern trend is to recognize that survey information, boundary monuments, etc. are generally readily available and ascertainable.
Encroaching parties usually seek to invoke the doctrine of Adverse Possession. To satisfy a prima facie claim of adverse possession, the claimant must prove to a court five elements: 1) actual and open and notorious exclusive possession; 2) the possession must be hostile to the owner’s title; 3) the holder must make an actual claim; 4) the possession must be continuous for at least a period of 5 years; and 5) (5) The possessor must pay all of the taxes levied and assessed upon the property during the period, i.e. property taxes. [West v. Evans (1946) 29 Cal. 2d 414, 417]. In practical fact, the fifth element, the failure to pay the property taxes related to the disputed land, usually acts to defeat a claim of adverse possession.
If you are involved in a real estate dispute involving an encroachment or other boundary dispute, Buffington Law Firm invites you to contact us for a free legal consultation. Our consultation process is always with an experienced real estate trial attorney, is completely protected by the attorney-client privilege, and there is never any obligation.