Legal Question in Real Estate Law in California

Re: 30 yrs Mistaken(?) Property Line

If your parents have truly built over the property line, they have committed what is known as an encroachment as well as a continuing trespass. They can be sued to force them to move the encroaching items.

You may have heard the term prescriptive easement. However, there is no such thing as an exclusive prescriptive easement (which is what your parents' encroachment would amount to).

You may also have heard the term adverse possession. However, that would not apply here unless your parents paid the property taxes on the piece of your neighbor's land that is now occupied (highly unlikely).

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Re: 30 yrs Mistaken(?) Property Line

It could be argued that they did pay the property taxes. The buyer of the property next door paid a price based upon the lot they saw when they purchased the property. It is likely that had the fence been elsewhere, they would have paid a higher price, and the taxes would be higher.

By the same token, the property taxes that your parents have paid could be based upon the value of the property as it appears, rather than the value of a smaller lot. Therefore, they have been paying a higher property tax, because it includes the additional 7 feet.

Re: 30 yrs Mistaken(?) Property Line

As far as strategy goes, it would probably be worth negotiating a fair value and work out payment terms, rather than your parents having to demolish the improvements. Perhaps your parents and neighbors could agree on a neutral third party, knowledgeable in such matters, to assist in negotiating.

Re: 30 yrs Mistaken(?) Property Line

The property tax issue is relevant only in the context of a possible adverse possession claim, which is certainly worth investigating as a starting point. If there is evidence to suggest that the assessments of the properties, post-split, have been based upon a visual appraisal rather than appraisal relying upon the deed description, then you'd be in a strong position to argue that you've been assessed, and have paid, the property taxes on the seven-foot strip. Payment of the taxes is one of the requirements for acquisition of title by adverse possession. It's somewhat of a long shot for two reasons: First, I think California urban properties in lot-split situations are more often re-appraised by reference to deed descriptions and the lot-split application, but there are exceptions and the appraiser's office should have records showing how they made the appraisal 30+ years ago. The second problem is that the appraiser's office might not have any records, or they may show unhelpful things.

Next theory to explore is a prescriptive easement. As has been pointed out, a prescriptive easement that in effect would give you exclusive possession and use will not be recognized by a court, because it would amount to a taking of the fee. However, you may be able to describe the easement (in a quiet title suit) in such a way that its existence and use is non-exclusive. Sometimes installation of gates will accomplish this if only a fence or wall is involved. A garage presents a problem, however.

Another theory is easement by estoppel. If the neighbor sat quietly by and let you construct improvements on his property, knowing that it was his property, he may be prevented or "estopped" to use the courts to assert his rights because of the failure to inform you of your error before you made a large investment.

Finally, it may be possible to negotiate a fair settlement based on purchase (would require an approved lot-line adjustment) or, a device I've used in two situations in San Francisco, a license coupled with an interest whereby you get use of the seven-foot strip so long as you, or either of you, are alive and reside at that house.

Re: 30 yrs Mistaken(?) Property Line

The other replies have apparently all assumed that the neighbor's statement is correct. You did not state how the neighbor determined that the fence was 7 feet over on his property. The first step would be to have a survey done to determine whether the neighbor's statement is true. If true then contact a local attorney and determine what is the best approach to the situation.