Landowners rarely survey their property until they are about to apply for permits for a remodel. However, surveys can often reveal a misplaced fence, or in more rural areas, personal property such as landscaping, sprinkler systems, chicken coops, and the like. The main concern for a landowner who discovers an encroachment is that the encroaching neighbor may have a claim for adverse possession or a prescriptive easement.
Boundary disputes can be costly and as there rarely a basis to obtain attorneys’ fees, such disputes can and should be worked out through compromise. In some cases, the offending party’s personal property or fencing could be very costly or even unsafe to relocate. For example, in hilly terrain, retaining walls tend to be very substantial and very expensive to move and may even necessitate a soils report from a soils engineer.
To address those situations, the parties can agree to leave the encroaching items in place subject to a writing such as a permissive license, or if it is a unilateral decision, the landowner may use California’s Civil Code Section 813 which states:
“The holder of record title to land may record in the office of the recorder of any county in which any part of the land is situated, a description of said land and a notice reading substantially as follows: “The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code.”
For example, let us assume that Lisa Landowner surveyed her property and realized that Ned Neighbor’s retaining wall, plantings and sprinkler system had been installed 3 feet onto Lisa’s property. Ned had just spent $50k on that landscaping and was very dismayed to think about removing or replacing it. Once she told him about the problem, the clock started ticking on the statute of limitations to enforce her landowner’s rights. Lisa has five years to deal with the issue or Ned may later be able to claim some prescriptive or equitable easement rights.
Ned never responded to Lisa’s requests to remove or relocate the encroaching items. In the meantime, Lisa can record a Notice of Consent pursuant to Civil Code Section 813. If there is ultimately litigation, the Notice would remove the element of “hostility” in a prescriptive easement or adverse possession claim.
For an encroacher to prevail on a claim of adverse possession he or she must show his or her occupation has been actual, open and notorious, exclusive and continuous for five years and that they have paid property taxes. It is rare for the encroacher to have satisfied the property tax requirement so at most, the occupier usually seeks a prescriptive easement. The main difference is that to establish a prescriptive easement, the occupier does not need to pay taxes and their use does not need to be exclusive—it may be a shared use. Since both types of claims require a showing of “hostility,” giving consent negates the “hostility” requirement because the occupier is now there by permission of the true landowner.
The statute is very clear on that issue stating: “The recorded notice is conclusive evidence that subsequent use of the land during the time such notice is in effect by the public or any user for any purpose (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is permissive and with consent in any judicial proceeding involving the issue as to whether all or any portion of such land has been dedicated to public use or whether any user has a prescriptive right in such land or any portion thereof.”
It is not a perfect long term solution, but it does buy the property owner a little bit of time in trying to work something out with their neighbor without worrying about the statute of limitations.
If you or a friend is seeking real estate legal counsel regarding a California based property, don’t hesitate to contact our law firm at (650) 327-2900 or visit us on the web at www.BrewerFirm.com.