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Prepared By: Melissa C. Marsh, Los Angeles Real Estate Attorney
Written: July 2007

Every month I will be contacted by at least one client seeking advice regarding a dispute with an adjoining landowner involving an encroachment. Over the past decade the number of boundary line disputes involving fences, driveways, gates, retaining walls, sheds, and trees have steadily increased in part because property owners often fail to obtain a survey prior to purchasing a new home or making improvements. Generally, the courts will apply one of the following legal theories to resolve such a case: (1) the doctrine of adverse possession or prescriptive easements; (2) the agreed boundaries doctrine; or (3) the relative hardship doctrine. This article briefly explores these three legal theories despite the fact that most disputes are and should be negotiated and settled out of court.

Adverse Possession and Prescriptive Easements.

"Adverse possession" is a means of acquiring full title to property through "open and notorious" continued possession and use of a property for 5 consecutive years and the payment of all taxes thereon. A prescriptive easement, on the other hand, is merely a means to acquire the right use land, but not the right to own or exclusively possess the land of another. Unlike a claim of adverse possession, a claim of prescriptive easement does not require the party to prove s/he paid all of the real property taxes.

There is a growing trend in California, however, to deny an "exclusive" prescriptive easement in situations involving boundary encroachments as the courts have determined that an exclusive prescriptive easement equates to adverse possession.

In 1996 the California courts decided two cases in which the plaintiffs sought an "exclusive" prescriptive easement. In Silacci v. Adamson, 45 Cal.App.4th 558 (1996) and Mehdizadeh v. Mincer, 46 Cal.App.4th 1296 (1996) the courts held that an "exclusive" prescriptive easement really equates to full title and to acquire full title California law requires the plaintiff to prove adverse possession (all of the elements necessary to a prescriptive easement and that they paid all of the real property taxes on the property). These two cases effectively eliminated the ability to acquire an exclusive prescriptive easement over adjoining residential property as the courts reasoned that by enclosing an adjacent landowners property behind a fence and excluding the true owner from using the property, the neighbor was making more than a limited right of use – he was exercising the equivalent of full ownership without paying all of the real estate taxes on the property as required by law to gain title to the property via adverse possession.

In 2004, the California courts again twice denied prescriptive easements. In Kapner v. Meadowlark, 11 Cal.Rptr 3d 138 (2004), Kapner built part of his driveway, gate and fence adjacent to a commonly owned roadway parcel and the court found that because Kapner enclosed and possessed the land in question, he was not entitled to a prescriptive easement. In Kapner, the Second Appellate District affirmed the trial court’s holding in favor of a homeowners association ordering the plaintiff to either sign an encroachment agreement or remove the encroachments. Similarly, in Harrison v. Welch, Welch built a shed and planted trees that encroached partially on the Harrisons' property and the court refused to grant an exclusive prescriptive easement, "which as a practical matter completely prohibits the true owner from using his land."

However, the question remains as to whether an encroaching neighbor has some other legal means to keep his or her fence, trees, driveway or other encroachment on your property and the answer is possibly under the "Agreed Boundaries Doctrine" examined below.

Agreed Boundaries Doctrine.

The agreed boundaries doctrine is another legal theory often plead to resolve disputed boundaries. Pursuant to the agreed boundaries doctrine, if the exact location of a property line is unknown and two adjacent property owners agree to erect a fence where they think the property line belongs, and the fence remains for five consecutive years, the fence may be deemed the new property line.

The "agreed boundary doctrine," however, is generally no longer available because recent cases limit its use to situations where the true boundary of the properties is not ascertainable. In Bryant v. Blevins, 9 Cal. 4th 47 (1994), the Supreme Court of California held that when adjoining landowners are uncertain as to the true location of their common boundary line, they may establish that boundary by agreement, pursuant to a legal theory commonly referred to as the “agreed boundary” doctrine. The Bryant case, however, also noted that "...to allow the doctrine of agreed boundaries to supersede recorded legal descriptions...would foster litigation rather than preventing it."

Although the court in Bryant stated that the "Agreed Boundaries Doctrine" is not applicable to situations where there is a recorded legal description of the property, the case left open the question as to whether a court could apply the agreed boundaries doctrine to resolve a boundary dispute where available legal records provide a reasonable basis for fixing the boundary. However, if either conflicting surveys or conflicting recorded documents exist and a party can prove that the adjacent landowners at one time mutually agreed to a boundary line and acted upon such agreement for five consecutive years, then the agreed boundaries doctrine may be a viable means to resolve the dispute.

Relative Hardship Doctrine.

"California courts have long applied the relative hardship doctrine in determining whether to grant an injunction to enjoin a trespass by encroachment on another's land... Under this doctrine, once the court determines that a trespass has occurred, the court conducts an equitable balancing to determine whether to grant an injunction prohibiting the trespass, or whether to award damages instead." Hirshfield v. Schwartz, 91 Cal App 4th 749 (2001). Under the relative hardship” doctrine, the courts will consider three factors: (1) whether the encroaching neighbor innocently placed the encroachment; (2) whether the encroaching neighbor would suffer significant injury if forced to move the encroachment; and (3) whether ordering the removal of the encroachment would create a disproportionately greater hardship on the encroaching neighbor than on the adjacent homeowner if the encroachment were allowed to remain. If an encroachment was innocently erected, extremely difficult and/or costly to remove and is causing little if any inconvenience to the adjacently owned property, a court may allow the encroachment to remain and award the adjacent landowner monetary damages for the loss of use of his or her property due to the encroachment.

In Hirshfield, the plaintiff and defendant owned adjoining lots in Bel Air. Schwartz had built a block wall, waterfalls, a stone deck, a Koi pond, and a putting green that encroached. Hirshfield used a small portion of his neighbor's lot for landscaping and setback. Hirshfield sued to compel the removal of his neighbor's encroachments. In Hirshfield, the court did not compel Schwartz to immediately remove his encroachments, but allowed the encroaching improvements to remain until Schwartz either moved or sold his residence and ordered Schwartz to pay Hirschfield $23,000 for the fair market value of the 800 square feet of land he was encroaching upon. The court called the defendant neighbor's right of use but not ownership an "equitable" easement.

Conclusion.

If you find yourself unable to amicably resolve a boundary dispute, promptly and simultaneously contact a surveyor to survey your property and an attorney to discuss your options. Failing to act quickly could lead to unanticipated results.

If you have additional questions regarding encroachments, easements, boundary lines, fences, or trees, and would like the assistance of a licensed California real estate attorney, Melissa C. Marsh, please schedule a telephone consultation for as little as $129 by completing Ms. Marsh's Telephone Consultation Request Form and Melissa Marsh will call you back at the time you select. To learn more about how our low cost telephone consultations work, click here.

Related Articles:

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• Your Neighbor's Fences and Trees – Are They A Nuisance?
• Adverse Possession Laws in California

California real estate lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and assists individuals throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.

© 2007 Melissa C. Marsh. All Rights Reserved.