Legal Question in Real Estate Law in California

Re: adverse possion

You may have fufilled the elements of adverse possesion, i.e., open and notorious possession for 10 years. Contact me directly.

Re: adverse possion

You must also have paid the taxes on the property to obtain it by adverse possession; I doubt you can show you did that. Also, is the useage obvious when no one knows where the property line was during all that time.

See if the new owner will help pay to move the fence; you can tell them you think you may have obtained ownership by having used it that long but are willing to compromise. Is the extra foot worth that much to you or is it the cost of moving the fence? Is the land currently vacant and they want to build on it? Do they intend to put up their own fence or if they need to apply for an zoning variance can you get them to put up a fence, so your only cost is tearing it down. which should not cost that much. Would they sell it to you for a reasonable price?

Re: adverse possion

Mr. Shers is right about the law of adverse possession and his suggestions for negotiating compromises are also very sound.

The answers do not suggest another possible legal theory, and that is a prescriptive easement. Easements aren't separately taxed (at least usually), so there is no requirement that you have paid the property taxes on the disputed land if you claim is to an easement rather than a fee.

Courts will recognize acquisition of an easement by prescription when the use you made, and will make, of the easement is non-exclusive and does not deprive the owner of the land upon which the easement is claimed of all use thereof. Thus, you might have to show the court that the strip of land is of little practical value to the owner, that he would have to install a fence anyway, that zoning setback rules make the land unbuildable, or something of that sort. The principle is demonstrated by the willingness of courts to grant easements by prescription for access driveways and paths, because they do not prevent the owner from entering and using the affected land, but they do not readily grant prescriptive easements where the use creating the prescription is something like a woodshed or fence without gate that cuts the owner off from access to a large part of his parcel.

So, I think you have a very slim case for ownership by adverse possession, but a somewhat better case for easement rights based upon prescriptive use. The latter case looks even better if you can show minimal to no practical impact on the owner's use of his land.

By the way, whether you paid the taxes on the disputed strip and therefore could have a case for ownership by adverse possession would probably boil down to a factual question of what the tax assessment was based upon and how it was made. If the assessor/appraiser only looked at a legal description of the property, and the legal description gives the strip to the neighbor, obviously he paid the taxes and you'd lose. However, if an appraiser came out and looked, and based the appraised value on the amount of land he saw outside the fence, the appraised value of the neighboring parcel would be accordingly lower, and perhaps you could argue that the land was assessed to you and thus you actually did pay the taxes on the disputed strip. This argument doesn't usually work because appraisers usually work from legal descriptions, not by eyeballing the property, but there are exceptions and this might be one because of the recent rezoning. Ask your assessor.

Finally, there is a concept about good-faith improvers of the land of another. It limits claims of trespass by the neighbor and would allow you to remove the fence, subject to certain conditions. See Civil Code section 1013.5(a) and also Code of Civil Procedure sections 871.1 through 871.7, which may suggest legal tools by which you could get a court to adjust the rights of the parties by a lot-line adjustment or otherwise.