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Can I Have My Neighbor’s Land?

Boundary, Fence, & Tree Disputes, Easements, Neighbor & Nuisance Disputes, and Real Estate Law by Simon Offord, Esq.

As the economy has improved we have seen a steady increase in fence and boundary disputes.  This is an increasingly common issue because when owners remodel their homes, a survey is sometimes required.  The survey reveals that the fence is not on the property line, despite everyone’s prior assumptions.  The question then becomes, does the misplaced fence give the encroaching neighbor some ownership interest in the land they have enclosed?

The short answer: No.

The common theories used by the encroachers to claim ownership or rights to the encroached area are adverse possession, prescriptive easement, or equitable easement.  However, the discussion below will explain the significant hurdles the encroacher faces in perfecting such claims, and why gaining any interest in the land is unlikely.

Adverse Possession

Adverse possession is the strongest remedy available to the encroacher.  If one prevails on an adverse possession theory, they become the fee owners of the encroached land.  For this reason, adverse possession is very difficult to establish.

To establish title by adverse possession, the user must prove satisfaction of all of the following five requirements:

  1. Possession must be held under either a claim of right or color of title.
  2. There must be actual, open, and notorious occupation of the premises in such a manner that constitutes reasonable notice to the record owner.
  3. Occupation must be both exclusive and hostile to the title of the true owner.
  4. There must be uninterrupted and continuous possession for at least five years.
  5. The possessor must pay all of the taxes levied and assessed on the property during the five-year period.

Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604.

The person who holds the legal title is presumed to be the owner of the property.  The person who claims title by adverse possession has the burden of overcoming the presumption in favor of the owner by proving each of the statutory elements of adverse possession in order to establish a new title.  C.C.P. § 321, California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803.

The first four elements are usually provable in a misplaced fence case.  The most difficult element to establish is the payment of taxes.

As a general rule, where adjoining lots are assessed merely by numbers and without reference to a survey, the claimant cannot establish adverse possession because he cannot establish payment of taxes.  Wilder v. Nicolaus (1920) 50 Cal.App. 776, 785.  Our experience has shown us that many of the local county assessors follow this general rule.  Thus proving the payment of taxes will require the encroacher to have taken explicit steps to ensure they have paid the taxes.  This is very rarely the case, as in most situations the encroacher does not even realize the fence is misplaced.

Prescriptive Easement

When they cannot establish adverse possession, encroachers often fall back on a claim for prescriptive easement.  The elements for prescriptive easements are the same as adverse possession, excepting the requirement to pay taxes.  However, the law does not allow for an exclusive prescriptive easement, as such a remedy essentially provides the encroacher fee title to land.  An easement is, by definition, a shared use.  Exclusive occupation is a right of ownership.  In order to establish ownership one must have paid the taxes.  Thus, there is no such thing as an exclusive easement, nor a prescriptive easement acquired by exclusive occupation.

Put simply, the courts have made clear that adverse possession may not “masquerade as a prescriptive easement.”  Since the fence typically completely excludes the landowner from using or occupying his or her land, the prescriptive easement theory fails.

Equitable Easement

The third common tactic used by encroachers is to seek an equitable easement.  The court may exercise its equitable jurisdiction to issue a permanent injunction against interference with future use when:

  1. a party has used and improved an easement for a long period of time with an innocent belief that they have the right to use the land,
  2. there would be irreparable harm if they could not continue to use the easement, and
  3. the affected property owner would suffer little harm from the continued use.

These last two elements are often taken together as “a balancing of the hardships.”  In most equitable easement cases, past Courts have only allowed the encroacher some continued use of the encroached area if the encroacher has significantly improved the land or spent significant sums on the land.  In most misplaced fence cases it is rare for there to be significant improvements in the area in question because (a) it is usually a relatively small area, and (b) people rarely place substantial improvements immediately adjacent to their fence line.

As you can see, acquiring rights in land enclosed by a misplaced fence is an uphill battle.  However, every case is different and whether you have certain rights is very fact specific.  Further, if you have lost land that you thought you were entitled to because of a misplaced fence, there may be other remedies available to you.  Brewer Offord & Pedersen LLP resolve and/or litigate these disputes on a very regular basis, and are here to help.  If you have any questions about this issue, or any real estate legal issues, please contact us at (650) 327-2900, or on the web at

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