Encroachment by neighbors: Where do you draw the line? | SierraSun.com

Encroachment by neighbors: Where do you draw the line?

A common occurrence in our area, given the lack of survey monuments, is a neighbor’s inadvertent building on the adjoining lot, whether it be a driveway, a fence, a deck or even a portion of a house. Must the improvements over the property line be removed or may they remain in place? That, my friends, is the question.

The short answer if the building improvements were constructed less than five years ago: Generally, they must be removed. If they have been in place for five years or longer, the riddle is more complicated.

Woodshed and landscaping

In 1994, Denese Welch, owner of Lot 7 in the Shasta Holiday subdivision, built a woodshed and planter boxes which extended over her property line onto Lot 8 Ð about seven feet for the shed and almost 10 feet for the landscaping.

In 2001, the owner of Lot 8, the Harrisons, had the property surveyed and the encroachment was discovered.

The Harrisons sued Welch seeking to have the improvements removed. Welch claimed she had a prescriptive easement and/or was entitled to prevail under the legal theory of adverse possession.

Adverse possession

If one property owner makes use of another’s property for more than five years, they may request a court order that they “own” the land underlying the improvements if the encroachment has been (1) open (visible) and notorious (obvious); (2) continuous and uninterrupted for five years; (3) hostile to (without consent of) the true owner; (4) under claim of right; and (5) they paid taxes on the encroached property.

The court of appeal, in a portion of this case that was not published, ruled against Welch because she had not paid taxes on any portion of Lot 8. Welch lost on her adverse possession theory that she owned the land underlying the woodshed and landscaping. Strike one.

Prescriptive easement

Welch’s strongest theory to keep her encroachments in place was a prescriptive easement. The elements of a prescriptive easement are exactly the same as adverse possession, but there is no need to pay taxes on the neighbor’s burdened land.

Welch made a strong showing of a prescriptive easement as the woodshed and landscaping had been in place over five years in an open and obvious manner without the Harrison’s permission. Under older prescriptive easement cases, Welch would have had a slam dunk.

However, recent California cases on prescriptive easements correctly note that an easement is a right to use someone else’s property in a non-exclusive manner. A driveway, for example, can be a shared use. A fenced area or a shed partially over the property line is an exclusive use Ð more akin to fee title ownership.

Justice Robie in this new case wrote: “We discern the rule that an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, will not be granted in a case (like this) involving a garden-variety residential boundary encroachment.”

Robie concluded that the woodshed, made of railroad ties sunk into the ground, effectively excluded the Harrisons of any use of that portion of their property, and likewise, Denese Welch’s planted trees, railroad tie planter boxes and buried irrigation system completely prohibited the Harrisons from using that part of their Lot 8.

Because the encroachments essentially gave Welch exclusive use of that part of Lot 8, she was not entitled to a prescriptive easement. The woodshed and landscaping spilling over the boundary line must go. Strike two.

Balancing of hardships

Justice Robie, a relatively new justice and a good one, pointed out the apparent sole exception to the rule that there is no such thing as an exclusive prescriptive easement. If the encroachment is a substantial building structure, like a house, the court may “weigh the relative hardships” in determining whether to order the removal of the encroaching improvements.

In my humble opinion, the Court reached the correct result.

Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site, http://www.portersimon.com.

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