Legal Question in Real Estate Law in California
Assume the following: A and B are owners of adjacent parcels of land with houses situated on a hillside. A bought her home in 1991. Since 1981 and continuing to the present, there have been four lateral support retaining walls in place that hold up a portion of the hillside on the property.
Since 1991, there have been three owners of B's property, which B purchased in 2010.
Since 1991, no owner of B's property had ever complained about the retaining walls to A. However, in September 2011, A had a survey completed on his property and allegedly discovered that each of the retaining walls encroaches no more than two or three feet over A's lot line. Now B wants A to tear down the retaining walls. Doing so will risk a partial collapse of the hillside immediately above the walls, which would affect both properties.
A understands the rules pertaining to prescriptive easements and A understands the duties of adjacent owners re adjacent and lateral support, but A is curious as to whether for litigation purposes it can be argued that B has waived any objection to the presence of the walls since they have been in place since 1981 and B bought the property with the walls clearly visible. By the way, B has the same access to the affected hillside as A. The walls do not divide or enclose the properties but run laterally across them.
1 Answer from Attorneys
In the 2nd sentance of the 3rd paragraph, I think you probably mean "B had a survey...."
I'm not sure that "waiver of objection" is a correct legal doctrine here. More likely, the fact that the walls are obvious upon inspection is part of the conditions necessary for there to be a prescriptive easement for their continued presence.
I strongly doubt that any court would order or allow their removal at the behest of B. Some side issues such as responsibility for any maintenance might still require adjudication.
Of course, we haven't heard B's version of the story, but as told, he seems to be a jerk.
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