Legal Question in Real Estate Law in California

You are in a bind. If your neighbor's deck is on your property it is what is known as an encroachment. Case law has generally held that when an encroachment actually rests on adjoining land, it constitutes a permanent trespass. In these situations, the offended landowner (you) normally files an action to either have the encroachment removed, or for damages. The offended landowner does not get both.

The big problem right now is the statute of limitations. In 1988, the Second District Court of Appeal held that in cases of encroachment �[t]he statute of limitations for trespass and injunctive relief is three years.� (Field-Escandon v. DeMann (2nd Dist. 1988) 204 Cal.App.3d 228, 233.) The court also held that the statute commences running when the encroachment is created, not when it is discovered. �When a trespass is of a permanent nature, the cause of action accrues when the trespass is first committed.� Although the deck is gone for the time being, the fence has been an encroachment for years, and it is irrelevant that you failed to discover it until now. (Which I find incredibly hard to believe, with a lot as small as 50' wide.) So you would not be able to maintain an action for damages or removal.

Arguably, he has not obtained ownership of your land, by adverse possession, because he would not only have to occupy your property, but pay property taxes on it as well. I doubt that your neighbor actually paid a portion of your property taxes. This doctrine does not apply, however, to a prescriptive easement. So arguably, your neighbor has obtained a prescriptive easement over a portion of your property.

Overall, this has caused a diminishment in the market value of your property.

Nice treatise from Mr. Roach, but I doubt it was very helpful. I view this situation as a lucky break for you. Due to the law Mr. Roach cites, it would have been an uphill battle for your to get the fence and deck removed until the neighbor tore the deck out himself. Now you don't have to let him put it back except on mutually acceptable terms. I recommend you spend a little bit of money on an attorney to help you negotiate an agreement with the neighbor and properly formalize it. I also recommend the agreement take the form of a license, not an easement, so that if a new neighbor moves in, you won't be bound by the agreement.