Legal Question in Real Estate Law in California

Re: what is diminicus

You can wait for them to threaten legal action and then have a survey taken to confirm the boundary. Then you can pay for an easement onto their property if necessary or buy that part of their property. Our CA attorney can assist you in this.

Re: what is diminicus

I think you mean "what is 'de minimis.'" It best translates from legal Latin as "of trifles."

A 2" encroachment by a 25-foot long boundary wall would perhaps fall into the category of trifling from the standpoint of legal significance, but that is fact-dependent. In an urban setting where lot dimensions are small and buildability or meeting setback requirements might depend upon that two inches, perhaps the encroachment is not so trifling. On a large ranch, it almost certainly is!

Perhaps more important, boundary fences and walls have a special place in the law of trespass and encroachment. It has always been so common to have a fence along the property line, and fences or walls have greater than zero thickness, the law has tended to tolerate things like fence posts, half of a wall, etc. that intrude an inch or two over the boundary. For this reason, I think it would be pretty hard to get a judge to rule that the wall is a trespass sufficient to warrant damages or an order for its removal. In addition, each neighbor would probably be regarded as having an implied easement to step across the border briefly to inspect or maintain the fence or wall, if that can be done without actual harm.

Finally, California courts have the power (and duty) to make equitable decrees to balance the hardships that arise when a neighbor innocently and in good faith encroaches on another. The court will not require the wall to be torn down or moved (at least absent unusual circumstances), and at most would award money damages for the value of the land occupied, or the like.