A common occurrence in our area, given the frequent lack of survey monuments, is a neighbor’s inadvertent building over your property line, whether it be a driveway, a fence, a deck or even a portion of a house. Must the encroachment over the boundary line be removed or may it legally remain in place? That, my friends, is the question.
The short answer if the encroachments 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 ENCROACHMENTS
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 – 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 long-standing improvements removed. Welch claimed she had a prescriptive easement and/or was entitled to prevail under the legal theory of adverse possession.
If a property owner makes use of a part of a neighbor’s property for over five years, he or she 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The Court of Appeal, in an unpublished portion of this case, ruled against Welch because she had not paid taxes on the portion of Lot 8 she inadvertently built on. Welch lost on her adverse possession claim that she owned the land underlying the woodshed and landscaping. No surprise. Adverse possession claims are difficult to perfect.
Welch’s much stronger 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 built-on land. Prescriptive easement claims are easier to achieve.
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 prescriptive easement and could have asked the court to allow her encroachments to remain permanently.
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 or path, for example, could be a shared use. A fenced area or a shed or bordered landscaping partially over the property line is exclusive use of the burdened property – more akin to true ownership.
Justice Robie in Harrison v Welch, a 2004 Third District Court of Appeal 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 other improvements spilling over the mutual boundary line must be removed.
BALANCING OF HARDSHIPS EXCEPTION
Justice Robie pointed out an 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, a court may “weigh the relative hardships” in determining whether to order the removal of the encroaching improvements and may order the encroacher to pay for use of the encroached upon land, thus allowing the encroachment to remain.
The Court of Appeal reached what I consider to be the correct result which has been followed in subsequent cases.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts,personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
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