Legal Question in Real Estate Law in California

Re: Easement

Adverse possession assumes that you knew of the trespass and allowed it to continue for a statutory period of time. It is not likely that there is a case of adverse possession here, since you did not know the fence was 7' onto your property until recently. You should show the survey to your neighbor and ask them to move their fence. If they don't, you may have to move it for them. That may require court action and a lawsuit. Good Luck.

Re: Easement

It is a tresspass action which if not taken up may result in your neighbors owing those portions of your property. If one knows or should know of an encroachment and does nothing, then that property may be subject to an adverse possession action transfering title. Call me directly.

Re: Easement

adverse possession requires 4 very distinct legal elements in order for it to effectuate. from the facts presented so far, it appears you may not have had actual, constructive or inquirey notice of the property that is being possessed NOW by your neighbors at issue, at least until after the survey was taken. this works strongly in your favor legally, if this is the case. further, there is a rather LENGTHY statutory period required before ANYONE else to take adverse possession in your property rights. So, your best bet under the circumstances here, would be to QUICKLY consult with an attorney to send out a legal letter to your neighbors at issue to remove the trespassing encroachments from your land IMMEDIATELY, or face a quiet title action in Court. if you would further assistance, or very affordable help in doing what needs to be done here in a timely manner, simply contact us directly today.

Re: Easement

I don't really agree with the prior three answers, so I'll give you a fourth:

The first issue that needs to be considered is the existence and nature of the easement. The existence of an easement may, by itself, prevent adverse possession from being possible. This is because the beneficiary of the easement may not be in "adverse" possession when he is in possession. One whose possession is permissive is, by definition, incapable of adverse possession -- generally speaking. Exceptions are possible.

Next, one must investigate whether the easement still exists. Easements are usually semi-permanent in nature. They usually aren't subject to expiration, and although they can cease to exist by virtue of abandonment, it usually takes more than non-use or building encroaching fences to terminate an easement.

In short, a careful lawyer must investigate the status of the easement as a first step.

Next, adverse possession takes five years. During that five years, the possession must be "open and notorious" (meaning noticeable and not sneaky or hidden from observation, but whether YOU noticed or not is not an issue), "hostile" (meaning without express or tacit permission by the owner, as would be the case where the person in possession was rightfully there because he held an easement), and the claimant must have paid all the taxes and assessments on the property claimed.

The tax-payment requirement is where most claims to ownership by adverse possession of strips of land between urban neighbors fail. Here's why. If X and Y are neighbors, and each owns a one-acre parcel of record, each is taxed on one acre. If X builds an encroaching fence that encloses 1.1 acres, leaving Y with only 0.9 acres, X is and remains a mere trespasser, and after five years is still subject to a suit for trespass and ejectment. The reason is that X and Y have each paid only the taxes on the parcels described in their recorded deeds, no more, no less.

Occasionally, an X may successfully argue that the assessor came out and visually inspected his property, and derived the assessment based upon what he saw, which included land inside X's fence that belonged, of record, to Y, but in computing the assessment only the visual impression was relied upon, and not the deeds. This argument is out of kilter with most modern appraisal and assessment procedures, and as far as I know is seldom a winner.

I would say that bringing the disputes to a legal conclusion is worth while, not just due to the value of an extra seven feet, but because disputes and boundary questions are kind of a poison on neighbor relations and on the overall value and marketability of your property. I suggest negotiation and mediation as a first approach rather that immediately bringing suit. A suit, if needed, should allege trespass and ejectment.