The author does not intend the following article to be a source of legal advice. If you have a legal problem, you are cautioned to hire a lawyer for advice and document preparation. Preparing legal descriptions is the business of the Land Surveyor under Section 8726 (e) Business. & Professions Code. The following article was written in 2002 for Stanton Land Surveys (stantonsurvey.com) and modified for the use of the California Land Title Association.
A neighbor whose existing fence or wall was set several feet over on an adjoining owner's property for more than seven years might think he has a supportable claim to the portion of the adjoining land enclosed by his fence or wall. If that neighbor had read only Curtis Brown (Boundary Control & Legal Principles, 4th Ed. (1995); and Evidence and Procedures for Boundary Location 4th Ed. (2002)), and maybe perused some California statutes, he might feel encouraged to try his claim in court.
But if that neighbor found out what courts in California had been saying on the subject – particularly in the last fifteen years or so, he would know that if he filed a complaint or cross complaint based on fence or wall location, he would very likely lose.
California courts probably will not apply the doctrines of adverse possession, prescriptive easement, agreed-upon boundary, or even practical location, to settle most disputes over a wall or fence that is perceived to be located too far away from the property boundary. As demonstrated in some significant case reports discussed below, the happier landowner is one who hires a land surveyor experienced in boundary location, and relies on the good will of his neighbor to reach a settlement of any perceived claim, staying out of court altogether.
The remedies, if any, that a court is likely to offer the neighbor are probably not worth the cost and not worth the trouble. (See the Hirschfield case below).
When a dispute arises, the adjoining owner might find that he has some limited title insurance protection for his single-family residential property if he was a bonafide purchaser for value under the right circumstances. But this protection – if available - is found only in the newest form of policy, is limited in dollar amount, and requires that the Insured pay thousands of dollars in deductible.
The retail homebuilder constructs most fences and walls close to the boundary line, but they are rarely located with great precision. Residential lot boundaries in tract subdivisions were not individually surveyed and are not always monumented. Some property owners understand that, and they avoid any dispute about it. When it comes time to repair or replace, they might hire a surveyor to locate the line for the new fence or wall.
As stated in California Civil Code Section 841: Coterminous owners are mutually bound equally to maintain: 1. The boundaries and monuments between them; 2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
For the neighbor who does want to commence a dispute with the adjoining owner, the law generously displays an array of shiny weapons for a lawyer to use in battle. See, for example: an article entitled: "Don't Fence Me Out" Los Angeles Lawyer (January 1997).
Neighbors' claims may range from an assertion of fee title to a claim of some temporary right or interest with a number of alternative remedies in between. See Ogden's Revised Calif. Real Ppty Law (CEB 1974), 15.36 & 15.38 containing a concise, though dated, discussion of encroachments and fences.
The neighbor planning his action should remember that the cases discussed below usually involve a corresponding counter-attack by the landowner based on trespass, nuisance or encroachment.
California appeals courts in the last 15 years or so have reported several cases dealing with the issue of a neighbor's fence or wall located over on the adjoining owner's property, and the neighbor's assertion of an interest in the owner's land that was enclosed by the fence or wall.
Adverse possession is well suited to a claim affecting an entire parcel, but not appropriate when ownership of an unimproved a strip is in question in a fence or wall dispute. But this doctrine remains a favorite in discussions between landowners. In such cases, the claimant has been unable to prove that he paid taxes, which is a required element of adverse possession. But see the Los Angeles Lawyer article referenced above for some creative thoughts on this issue.
Some of the pertinent statutes (California Code of Civil Procedure Sections 322 through 325) appear to be general enough to cover a fence or wall dispute. Terms such as "occupation" and "substantial enclosure" are tempting to the party claiming such rights. But courts have not rewarded the claimants' efforts in these fact situations.
One court put the entire doctrine of adverse possession in question: "[I] t may even be asked whether the concept of adverse possession is as viable as it once was, or whether the concept always squares with modern ideals in a sophisticated, congested, peaceful society." Finley v Yuba County Water Dist. (1979) 99 Cal App 3d 691, 696; 160 Cal Rptr 423.
His doctrine has not come up in any recent cases, but it is pertinent to the discussion, so we mention it anyway. Where the owner of a larger parcel transfers title to a smaller parcel that he has physically delineated by fixed monuments, and the parties rely on such monuments as establishing the intended boundary, the physical monuments prevail over any different legal description in the transfer document. Discussed in French v. Brinkman, 60 Cal 2d 547, 551; 387 P 2d 1 (1963). (Neighbor plaintiff's wall was located three and a half feet over on defendant owner's land; plaintiff had been paying taxes on the separately assessed disputed strip! Trial court gave plaintiff quiet title judgment. Appellate court affirmed on "either / or" practical location / agreed-upon boundary). Due to stringent Subdivision Map Act requirements and County Assessor practice in California, this type of case will be very rare.
In a typical trick of legal rationale, this doctrine involves no actual agreement at all. Under the right circumstances, a doctrine referred to as "agreed-upon boundary" is an appropriate remedy where location of the property line is actually uncertain and other supporting factors exist. Armitage v. Decker, 218 Cal App 3d 887; 267 Cal Rptr 399 (1990). (Plaintiff acquired title in reliance upon the selling broker's representation that the fence was the true boundary. But the court found no evidence to prove that the fence had been built to resolve any uncertainty in the boundary location).
Existing legal records should usually be adequate to settle a boundary dispute without stretching to invent "uncertainty" or infer an "agreement" when neither actually exists. Bryant v. Blevins, 9 Cal 4th 47; 36 Cal Rptr 2d 26; 884 P2d 1034 (1994). If a description is sufficient for a land surveyor to lay it out on the ground, then the doctrine should not apply.
The dissenting opinion of the late Justice Mosk in Bryant v. Blevins, with whom Justice Kennard concurred, illustrates a common bias among some legal professionals against the skilled and expert opinion of land surveyors: "…he (the surveyor) may nevertheless fail to find the correct location of a landmark or corner". The dissenters felt that, based only on that possibility, the "understanding and expectation" of the encroacher was more important than the intent of the parties at the time of the original documentation, expressed in the terms of that documentation.
Contrary to what some surveyors have been told by their colleagues, Bryant v. Blevins had nothing to do with the method of laying off the legal description of the westerly half of Lot 57 (one of 64 Lots shown on a tract map recorded in 1910). The accuracy of the surveyor's work was not disputed, and nothing in the case would imply that any error had been committed. The case also had nothing to do with reference to an Official Federal Government plat, because the description was properly referenced to a tract map filed under state law on privately owned land.
An easement by prescription fits a situation involving actual use for a defined purpose such as vehicular access or sewer line. But the doctrine has not worked to benefit an encroacher whose fence encloses a yard area. See Mehdizadeh v Mincer, 46 Cal App 4th 1296; 54 Cal Rptr 2d 284 (1996). (Claim based on theory of agreed boundary or prescriptive easement over a ten-foot strip used for landscape, irrigation, and dog run. Trial court held prescriptive easement. Appellate court reversed).
"Given the evolution of modern society toward greater intensity of land use and the growing emphasis on land use planning and discouraging litigation, it is open to debate whether the prescriptive easement doctrine will continue to serve valid or useful purposes in many modern California real estate cases." Robert E. Merritt and Jeffrey A. Benz in: "Fences, Boundaries, and Prescriptive Easements", CEB Real Property Law Reporter, Vol. 23, No. 3 (April 2000). Merritt and Benz quote the dissent in a well known case that held that the plaintiff had acquired an easement by prescription: "modern society evidences a preference for planned use, not the ad hoc use of a trespasser…[s]ociety should not be in the business of forcing an owner of land to bring suit when a trespass has occurred. Such a policy increases litigation." J. Reynoso, dissenting in Warsaw v Chicago Metallic Ceilings, Inc. 35 C3d 564, 574; 199 Cal Rptr 773 (1984).
In Silacci v Abramson, 45 Cal App 4th 558; 53 Cal Rptr 2d 37 (1996), the defendants cross complained against the landowner, proving all necessary elements of their case for prescriptive easement. But the appeals court reversed the trial court's judgment for the trespassing neighbor, stating that the trial court's application of the doctrine of prescriptive easement to a backyard area "…perverts the classical distinction in real property law between ownership and use". But see a case involving a reservoir for public water supply, where the court did order a "prescriptive easement" in favor of a public agency: Otay Water Dist. v Beckwith 1 CA4th 1041, 3 Cal Rptr 2d 223 (1991).
In Raab v. Casper, 51 Cal App 3d 866; 124 Cal Rptr 590 (1975), the appeals court partially reversed the trial court's judgment, severing and remanding the yard and landscaping claim but affirming the other claims to active easement use for specific purposes.
In Hirschfield v. Schwartz, 91 Cal App 4th 749; 110Cal. Rptr. 861 (2001), the plaintiff and defendant owned adjoining lots in Bel Air. This case involves more than a fence or wall, but it illustrates what a court can do to twist up a remedy when the facts are complicated. Schwartz had built a block wall, waterfalls, a stone deck, a Koi pond, and a putting green that encroached. Hirschfield used a small portion of his neighbor's lot for landscaping and setback. Hirschfield sued for compelled removal of the neighbor's encroachments. The court did not compel immediate removal, but allowed the encroaching improvements to remain until the neighbor sold his residence or moved out of it. In allowing the improvements to remain, the trial court labeled the interest an "easement". (The appellate court referred to it as a "protective interest" but did not disturb the trial court decision that this was an "easement"). Meanwhile, said the court, the defendant neighbor must pay the plaintiff owner the market value of the 800 square feet in question: $23,000.00.
This is the only recent case discussed in this article where the encroaching party won. But look at what he got for spending a fortune in attorney's fees: He was forced to pay the full market value of the land affected by the encroaching improvements but he did not even get the fee ownership. He received only a temporary easement that the court called an "equitable" easement. Rumor had it that the parties were so dissatisfied with the outcome of this case that they got together after appeal and entered into some kind of settlement anyway.
See a discussion of the Hirschfield case in Dennington, "Recent Legal Developments Concerning Encroachments: Should They Stay or Should They Go?" The California Surveyor, page 11 (Spring 2002). The underlying principle in the case is: Whether a property owner may compel his neighbor to remove an encroachment depends on the intent of the encroacher, the extent of the damage that might be suffered by the owner resulting from the continued encroachment, and what hardship the encroacher might suffer if the court compelled removal of the encroachment. The principle is often referred to as "balancing the hardships". It is not new law. In an older case that had nothing to do with a boundary dispute, the court found a permanent "equitable" easement for use of a buried sewer pipe. No compensation was required. Field-Escandon v DeMann, 204 Cal App 3d 228; 251 Cal Rptr 49 (1988). An even earlier case was cited in Field-Escandon for the principle of "balancing the hardships".
The careful land surveyor notes the facts as disclosed, and reflects them on any report or plat. To achieve an efficient resolution to a question or dispute of this type, it is necessary to build a good record, plat every pertinent feature, and be prepared to support any opinion with reference to a thorough knowledge of the facts. Collecting these facts probably requires the land surveyor to work outside the scope of the average job. But the land surveyor still does not need to use words like "occupation", "possession", "acquiescence", "estoppel", "prescription", or in completing a good job. It is usually better not to use these terms because it might border on giving legal advice.
What about the surveyor who innocently runs into a potential dispute? For example, in a case where neither neighbor alerts the surveyor to a possible problem with the fence or wall, but the surveyor finds some indication that the fence or wall is more than a couple inches away from the boundary. He might adhere to the rules summarized in Wattles, Land Survey Descriptions (10th Ed. 1976), Section 800. This is the only secondary source mentioned in this article, besides Merritt & Benz above, that the writer recommends. William Wattles suggests that the surveyor painstakingly collect the facts prior to making any conclusions, and avoid making any statement based only on what is first visible to the eye. The surveyor evaluates this evidence based on what Wattles calls the "majority probability theory". In a legal proceeding, it might be referred to as "preponderance of the evidence". There are those rare times when a wall or fence is strong evidence of a property boundary in the absence of other adequate boundary controls.
Being a title man, this writer always prefers to see a dispute prevented, settled, or thrown down in court in a quick death. If a problem is recognized, one should be prepared with some idea of how the matter can be resolved. It is best for the parties to formulate a complete idea of what they can agree on, including compensation, and then have a proper document drawn by or approved by an attorney. The simplest document we have seen employed for the purpose is an easement deed that includes the following: (1) description of the area in issue (sometimes called the "servient tenement"); (2) purpose of the easement (e.g. for landscaping) (3) description of the land that the easement will be used with (sometimes called the "dominant tenement"). Sometimes, it is preferred to use a similar document, but style it as a license instead of an easement. We sometimes see such a license providing for transferability, subject to conditions such as specified appearance of the wall or fence, as well as maintenance and repair. If the parties intend that the interest be only temporary, it is more practical to provide that the interest will last for a specified duration, possibly until the owner who suffers the encroachment sells, at which time the cost of replacement could be divided.
In any case, the accurate location of both the boundary and the purported encroachment is necessary to any such agreement, and often such location is impossible without the assistance of a land surveyor skilled in boundary work.
Under California Civil Code Section 1008, an owner may minimize the possibility of prescriptive claims by posting at each entrance to the property, or at intervals of 200 feet or less along the boundary of the property, a sign that substantially states: "Right to pass by permission, and subject to control, of owner under Section 1008, Civil Code." The owner may also record a notice that is deemed conclusive evidence that the use is permissive. Section 813, California Civil Code.
Copyright 2003 by Lawrence Lacombe. Lawrence Lacombe is a Land Title Consultant. He is also Vice President & Chief Title Officer with Fidelity National Title Company in the Main Los Angeles Office and has 30 years experience in the business, including independent experience as skilled and expert witness in state and federal courts, and in arbitration (AAA). Lacombe has chaired CLTA committees and prepared and presented programs for lawyers' continuing education for CEB and for Lorman Education. Contact: 323/663-2850