Full question:
An encroachment appears to have existed for a very long time. How do we resolve it without moving the small building that straddles two properties? am a realtor in CA involved in a transaction, as a realtor and as the buyer, where a small building on the property being purchased straddles the adjoining property.
- Category: Real Property
- Subcategory: Encroachment
- Date:
- State: California
Answer:
In cases of encroachment, a property owner may seek compensation for the fair value of the encroached property. Courts typically determine this value based on expert evidence of comparable properties in the area. To receive punitive damages for an encroachment, the plaintiff must prove that the defendant acted recklessly, showing a conscious disregard for property rights.
An easement can be created through an agreement, allowing specific use of another's land. A right of way is a common type of easement that permits someone to travel over another's property, provided it doesn't interfere with the owner's use and enjoyment of their land.
Under the laws of adverse possession, a person may gain title to land by using it for a specified period, as defined by state law. For instance, if a neighbor builds a fence several feet onto their property, and the true owner is aware of this but does not dispute it, they may lose title to that portion of land. The use must be open and notorious, meaning it is visible for everyone to see.
To establish adverse possession, the claimant must demonstrate actual, open, notorious, exclusive, hostile, and continuous use of the land for the statutory period. All these elements must coexist for title to be acquired. Continuous possession means regular, uninterrupted use; sporadic use is insufficient.
It's important to note that multiple individuals can contribute to meeting the continuity requirement through a process called tacking, provided there is privity between them. Privity exists when possession is transferred from one owner to another through sale, inheritance, or other legal means.
To resolve the encroachment, consider notifying the neighbor or entering into an agreement for an easement.
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.