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Jim Porter: Go ahead and plant flowers on your neighbor’s property

Jim Porter
Special to the Sun

With that catchy headline suggesting property owners may plant flowers on their neighbor’s property, we figured we would draw you into this admittedly dry Law Review column about California encroachment and easement law.

For lawyers, the new case of Richardson v. Franc is significant because it seems to give another basis for courts to avoid forcing removal of structures and landscaping built over a property line.

Access and Utility Easement

The Poksays had a 30-foot wide access/utility easement that ran along a 150-foot long driveway over their neighbor’s, the Schaefers, property.

The Poksays installed extensive landscaping on both sides of their driveway — outside of the easement — on the Schaefers’ land.

For close to 15 years, the Poksays and the family that purchased their home, the Richardsons, continued to enhance the landscaping, spending considerable sums of money.

The Francs purchased the Schafer property and all was neighborly for six years at which point the Francs raised the first-ever objections about the landscaping.

In fact, the Francs cut the irrigation and electrical lines on both sides of the driveway and disassembled the Richardsons’ water valve pumps contending that the landscaping improvements were constructed outside of the 30 foot easement and on their property and must be removed.

Neighbor v. Neighbor

Finally, the Richardsons sued the Francs claiming they had a legal right to maintain the landscaping, even outside of the driveway easement, under these legal theories: prescriptive easement, adverse possession, equitable easement and an irrevocable license — all theories raised to allow the Richardsons to keep their beautiful landscaping on the Francs’ property.

Boundary Line Easement Law

Here’s Easement Law 101 applied to situations where one neighbor inadvertently builds a road, a landscape area or even a house or garage partially over the property line onto the neighbor’s property.

There are four legal theories to be able to leave the improvements in place:

The obvious first line of defense is a prescriptive easement, an open, notorious, continuous and hostile use of another’s property for a period of five years without the permission of the other owner. A prescriptive easement is a powerful weapon to continue using someone else’s property, but this Fourth District Court of Appeal determined a prescriptive easement was inapplicable in this case.

An equitable easement is like a prescriptive easement but the courts, through their inherent powers of equity, will sometimes allow the encroaching owner to keep the improvements built on the neighbor’s property, because of the disproportionate cost to remove the improvements. Too valuable to be forced to remove; however, the encroacher pays market value for the encroached upon land. An equitable easement must be an inadvertent encroachment, however, and the encroaching flowers were intentionally planted outside of the 30-foot easement so the Court of Appeal found no equitable easement.

Irrevocable License

The trial court and the Court of Appeal wanted to allow the encroaching landscaping which had been maintained for over 20 years without any complaints, to stay in place, so they kept searching for the appropriate legal remedy.

And they found one: An irrevocable license to use someone else’s property. “[A] license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge.”

Indeed, the landscaping improvements were allowed to remain and the right to keep those improvements may be passed down from driveway owner to driveway owner.

Tip to Lawyers, if Any

When you’re trying to protect your client’s right to maintain encroachments on the neighbor’s property, and the legal doctrines of prescriptive easement, adverse possession (prescriptive easement with payment of taxes) and equitable easements do not meet legal muster, think irrevocable license.

A huge potential work-around the rigid armor of easement law.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.


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