Legal Question in Real Estate Law in California

When you purchased the property you probably obtained title insurance that may provide an avenue of recovery if you lose any part of the land or for your bringing an action to establish ownership. The chances are good that you will be able to obtain the land through adverse possesion if they are correct on boundries. There are a number of things you can do but you need to hire a qualified attorney right away.

I do not exactly agree with Mr. Selik. First, adverse possession in California requires that you pay the taxes on the property which you adversely possess. It is not clear, but most likely that you have not been paying a portion of the neighbor's tax bill, so adverse possession really does not apply. You will, however, want to investigate this as the Assessor may have made a mistake and have based your taxes upon the existence of land that is actually on your neighbor's lot. This is not a question that can easily be answered on a forum such as this - contact a good, experienced land use or real estate attorney.

Next, prescriptive easements may apply, but they are very fact-intensive, and your possession of the property generally needs to be hostile to the actual owner. It is not clear from the foregoing facts that you can satisfy that part of the test.

Finally, a basic policy of title insurance does not include any boundary issues. In other words, if you closed escrow with the standard form of title insurance, it has a very specific exclusion for boundary disputes. In fact, it says nothing more than the fact that you own the property as described in the deed - not what you see physically. You should have had the property surveyed before you bought it, and/or purchased an advance title policy which contains a survey and therefore does insure the proper boundaries of the land. A CLTA policy is what most homeowners buy, and is not sufficient to protect you here. An ALTA with Survey policy would have protected you, or at least put you on notice that you were not buying the whole property.

One final note - in California there are some case which hold that the original, developer-installed fences are the true property lines irrespective of the legal description. Again, this avenue is extremely fact intensive, and you would have to prove that the fences were installed by the developer and intended to be the actual property lines. It does not sound like that is the case here, but you should be aware that you will want to exhaustively research (with a qualified, experienced attorney) all possible solutions. You may also need to pursue your seller for failing to disclose this.

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I agree with Mr. Gibbs. The odds are heavily against your boundary being placed anywhere but where your deed says it is by any court of law under any theory. Let's look at them, one at a time.

1. There used to be a so-called "agreed boundary" principle that was used in areas where surveys were inaccurate or conflicting, and landmarks difficult to find, so that if the two neighboring farmers had accepted the old stone fence as the boundary line for decades, well, then that's where it was. This theory may still have a place in remote areas, but is very much out of favor in easy-to-survey urban areas.

2. "Easement by prescription" is out of favor in the courts as a way to shift a surveyed and deeded property line. Courts won't allow a prescriptive easement to rectify a property line or fence-building or orchard planting (etc.) mistake when the result is, in effect, a transfer of the fee title to the claiming party.

3. "Adverse possession" requires the claimant to pay all the property taxes. Since most assessors figure property assessments while sitting in their offices reviewing maps, deeds, titles, property descriptions, etc. rather than out in the field looking at backyards, your assessment and therefore the taxes you (and your predecessors) paid probably reflect the size lot described on the assessor parcel map and in your deed, rather than the larger lot they would have seen in a property visit. It would be worth while to inquire, however. There are occasional exceptions where assessments were made in the field.

4. Title insurance probably won't be helpful, for the reasons given. The insurance guarantees you own what is described in the deed, not what you see outside the back window.

5. Suing the seller for misrepresentation is a possibility, but since the seller hadn't lived there, it may have been a careless mistake rather than a deliverate falsity to describe the yard as she did. Possibly actionable, but a lot less obviously so than if the seller who described the yard had lived there a long time. Consider also the seller's broker and agent, if any. However, the sale documents may say the property is sold by deed description and that the sellers and broker don't make any other warranties about its boundaries.

6. Having your own survey made to verify the accuracy of the neighbor's survey might be a good idea, but maybe not worth the cost.

7. I don't know anything about cases holding that developer-installed fences become the boundaries. I can see this happening in some careless developments, so I don't doubt that it's happened, but this doesn't sound like such a situation.

I think you need to take your title documents, such as any title policy issued to you, and your deed that you received, along with the survey and speak to a competent real estate attorney. It would also help to bring the recorded deed your neighbors received. Surveyors these days tend to perform surveys based on information they have been provided, in this case, information provided by your neighbors.

The reason is that you cannot own more than what you were deeded, and the boundaries of your property should be clear from the legal description to the property you were deeded.