Encroachment and Boundary Line Dispute

Full question:

I have been living in my home in California that my wife and I purchased over 11 years ago. Recently, a neighbor who bought the house on one side of our house about 2 years ago informed me that our fence encroaches over his property line. He wants us to move the fence. This same fence has been there since we bought the house. Do we have any rights under adverse possession since the fence has been there for at least over 11 years? Do we have any recourse?

• Category: Real Property
• Subcategory: Encroachment
• Date: 04/07/2025
• State: California

Answer:

Boundary Lines: Law & Legal Definition.

Adjoining landowners can find themselves in disputes over fences, overhanging branches, water rights, subjacent and lateral support and party walls. A boundary is every separation, natural or artificial (man-made), which marks the confines or line of division of two contiguous estates. A river or other stream is a natural boundary, and in that case the center of the stream is the line.
Boundaries are frequently marked by partition fences, ditches, hedges, trees, etc. When such a fence is built by one of the owners of the land, on his own premises, it belongs to him exclusively; when built by both at joint expense, each is the owner of that part on his own land. When the boundary is a hedge and a single ditch, it is presumed to belong to the person on whose side the hedge is. But if there is a ditch on each side of the hedge, or no ditch at all, the hedge is presumed to be the common property of both proprietors. A tree growing in the boundary line is the joint property of both owners of the land.

Encroachments.

Encroachments, whether by fence or by structure, generally become either a boundary line dispute (if the neighbors cannot reach agreement) or become the basis for a boundary line agreement (if the neighbors can reach an agreement on the location of a new, “adjusted,” common boundary-line.

As a general rule, an encroachment exists only when a fence or structure lies on both sides of the recorded boundary line for a period of time less than the period of the state’s statute of limitations for civil actions regarding real property. The period of encroachment includes not only the 11 years during which you have owned the property, but also the period of time that the prior owner(s) occupied the property, so long as the fence was in the same location. The accumulation of time marked by the ownership period of the current owner and all prior owners (so long as the relevant facts remain constant, that is, the fence is now and was then in its current location – its encroaching location) is known as “tacking.” The period of encroachment (if open, notorious, and under a claim of right) from the facts you have given appears to be greater than 11 years. The California statute of repose – the ultimate statute of limitations for all claims of whatever nature appears to be 10 years.

You may wish to consult an experienced attorney to attemt to negotiate a boundary-line agreement with your neighbor. In doing so, you would at least attempt and at best would succeed in saving both you and your neighbor significant sums of money that otherwise might be expended on litigation.

The basis of a defense to encroachment is adverse possession. The doctrine of "adverse possession" is one of the most interesting in the field of real property law. The character of the law reflects the pioneer spirit of a growing world in both North America and Europe over the last few centuries.

If a person moves into possession of property, improves it and possesses it in a public manner, then after a certain amount of time he will acquire title to the property even though it is actually owned by someone else. The idea for adverse possession has at its root that land should not lie idle. If it does, it is wasted to the community. Therefore, if someone moves onto the land and makes it productive, that person may earn the right to claim it as his or her own. It is also reflective of the imprecise nature of ancient land sales: a person who believes he owns land, establishes himself on it in public, and is not hindered after a period of time, should be entitled to own the land.

Adverse Possession.

The basic requirement for adverse possession is that the claiming party must take exclusive possession of the property. This type of possession is called "open and notorious" or proactive and absolutely not secretive possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement; see your state codes or the code of the state in which you are interested for more detailed information.