Legal Question in Real Estate Law in California
This is a corrected question due to typos:
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, B 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 B�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
Supplementing my answer to the uncorrected earlier version of the question:
There are almost certainly valid reciprocal easements for the retaining walls, and it is highly doubtful that a court will disturb the current legal or physical situation. Determining the exact legal description for the reciprocal easements for the walls' presence would require more information about their history and the history of the parcels' ownership, e.g., were the walls built before or after the subdivision of the parcels? Nevertheless, absent unusual facts not given in the question, there will be a valid easement, whether an "implied easement" a/k/a an "easement implied from a quasi-easement" or a prescriptive easement.
Cases which may be helpful in understanding and arguing for the existence of the easement include: Tusher v. Gabrielson (1998) 68 Cal.App.4th 131 at page 141; Larsson v. Grabach (2004) 121 Cal.App.4th 1147, 1151-1152; Owsley v. Hamner (1951) 36 Cal.2d 710, 720; and Fristoe v. Drapeau (1950) 35 Cal.2d 5, 9.
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