Full question:
My neighbor and I agreed 2 years ago to share the cost of rebuilding a fence that has been in place since 1947. At my neighbors request, a survey of his lots was made to obtain a permit to rebuild his home. Nothing to do with the fence. The surveyor paid by him put the fence 2 feet inside his property. A fact that was revealed to me after we started demolishing the fence a week ago. He insisted on rebuilding the fence on the property line defined by his surveyor. I argued that it should be rebuilt where it was (a grand fathered situation?) because we agreed prior to anybody's knowledge of this new situation to rebuild the fence where it was. Am I correct in my assessment? If he wants to rebuild the fence on the property line he should pay for it. It is his fence. And in that case where should the posts be set? In the center of the property line? Inside his property? Or a distance from the property line?
- Category: Real Property
- Subcategory: Adverse Possession
- Date:
- State: California
Answer:
When there is a boundary dispute due to a claim of encroachment on another’s property, a claim of adverse possession of prescriptive easement may be raised. Adverse possession claims seek to gain title to poroperty , while prescriptive easement claims seek the right to continued use of, rather than the title to the property. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. In California, adverse possession and prescriptive easements each involves the unpermitted use of another's property for five years. A key difference between the two concepts is that an adverse possessor must pay property taxes for the affected property, while one can acquire a prescriptive easement without paying taxes. Courts in California have been reluctant to find in favor of adverse possession and prescriptive easement claims in recent years.
It may be possible for you to negotiate an easement with your neighbor in order to place the fence in the original location. It is also possible to bring a court action to quiet title to have the court resolve the boundary dispute.
The following are CA statutes:
318.
No action for the recovery of real property, or for the
recovery of the possession thereof, can be maintained, unless it
appear that the plaintiff, his ancestor, predecessor, or grantor, was
seized or possessed of the property in question, within five years
before the commencement of the action.
323.
For the purpose of constituting an adverse possession by any
person claiming a title founded upon a written instrument, or a
judgment or decree, land is deemed to have been possessed and
occupied in the following cases:
1. Where it has been usually cultivated or improved;
2. Where it has been protected by a substantial inclosure;
3. Where, although not inclosed, it has been used for the supply
of fuel, or of fencing timber for the purposes of husbandry, or for
pasturage, or for the ordinary use of the occupant;
4. Where a known farm or single lot has been partly improved, the
portion of such farm or lot that may have been left not cleared, or
not inclosed according to the usual course and custom of the
adjoining country, shall be deemed to have been occupied for the same
length of time as the part improved and cultivated.
325.
For the purpose of constituting an adverse possession by a
person claiming title, not founded upon a written instrument,
judgment, or decree, land is deemed to have been possessed and
occupied in the following cases only:
First--Where it has been protected by a substantial inclosure.
Second--Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be
considered established under the provision of any section or sections
of this Code, unless it shall be shown that the land has been
occupied and claimed for the period of five years continuously, and
the party or persons, their predecessors and grantors, have paid all
the taxes, State, county, or municipal, which have been levied and
assessed upon such land.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
