Full question:
In the process of adding onto my property that I have lived in for over 14 years, it was revealed that part of my existing property (bathroom roughly 6 square feet)was encroaching onto my neighbors property. The city I live in will not allow me to continue with my project until this is taken care of. After going down to the records department I discovered that the previous owner of my property had requested permission (1983) to remodel the bathroom in question. He addressed the issue with the encroachment stating that the bathroom was there prior to him purchasing the property. He was requesting permission for a set-back of 3' from his property (bathroom) rather than the 8 feet required. The city allowed him to remodel the existing bathroom but would not allow him to build onto the property until the 'land lock' was corrected. The area that I intend on adding on to is no where near the area in question and it would not affected. The area of the encroachment is at a distance of about 20 away from their home on a slope approximately 15-20 feet high. They have never laid foot on that part of their property and there is no way that they can build or make use of it. About four years ago, I told my neighbor that I intended on replacing the fence that separated (and where 6' of the encroachment is) our property because it was termite infested and because it was falling onto their side. I told them that I would be replacing it at my cost. I also informed them that the fence would show the less desirable side of the fence on their side. I gave them the option of a 'neighbor friendly fence' that would look nice on both sides if they were willing to split the cost of the materials, I would be providing the labor. The neighbor agreed and upon completion of the job I was never reimbursed for their half of the money. Being a good neighbor, I never brought the cost of the fence up. With regard to the encroachment my title insurance company contacted my neighbor asking for permission to grant us an easement. They also agreed to reimburse them for the easement for whatever the going square foot would be. As of now the neighbor is not willing to work with us. She went so far as telling me that she was considering asking me to remove my main sewage line that runs under her property to which we are both connected to. Prior to 1914, her property and mine were one property. Sometime after 1940 the property was divided and sold. The new owner built my neighbors existing home on the property. Considering the date that the neighbors home was built (1940) compared to mine that was there since 1913, I believe that her home's main sewer line connected to my homes existing main sewer. Upon further research and reading my tittle from the tittle insurance, I found that there is an easement for the sewer line. Can she revoke the easement and would adverse possession apply here as a last resort being that I have maintained her side of the property? It is also my understanding that in order for adverse possession to take place I would have to prove that I have been paying property tax on her part of the property. How do I prove that and/or does that apply to me.I need to complete the remodel because my son suffered a diving accident that rendered him paralyzed. I need to retrofit my home and cannot until this is resolved.
- Category: Real Property
- Subcategory: Easements
- Date:
- State: California
Answer:
In California, adverse possession requires five years of continuous, open, and notorious use of the property, which must be adverse to the owner's interests. You must also maintain and improve the property and pay property taxes on it during that five-year period. If you occupy the property with the owner's consent, it is not considered a hostile claim. Even a simple note granting permission can defeat a claim of adverse possession.
According to California law (Cal. Civ. Code § 325), land can be deemed possessed through substantial enclosure or cultivation, but you must show continuous occupation and payment of taxes for five years.
Regarding easements, there are two types: easements in gross, which are personal and terminate upon the owner's death or dissolution, and appurtenant easements, which are permanent and transfer with the property. Your sewer line easement is likely appurtenant, meaning it remains with the property even if ownership changes.
An easement can be terminated if its purpose no longer exists, if the owner of the easement and the land merge, if the landowner releases the easement, if it is abandoned, or through adverse possession. Nonuse of a prescriptive easement can also lead to termination.
To resolve your situation, you may need to consult a local attorney who can review your specific facts and documents.
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.