Legal Question in Real Estate Law in California

Re: encroachment

The principles that you need to understand are adverse possession and prescriptive easement.

These laws are essentially statutes of limitation which require lawsuits to remove someone from possession or stop someone from use of your property to be brought within five years.

Adverse possession transfers legal ownership after five years of "open, notorious, continuous and hostile" possession, provided the adverse possessor has also paid all the taxes. A prescriptive easement is obtained much the same way, but use, not possession, is the defining characteristic.

The terms "open" "notorious" "adverse" "continuous" and "possession" all have semi-technical meanings and without some legal training it is difficult to grasp exactly what does, and what doesn't, entitle an encroaching party to title.

Of course, the adverse user's name doesn't automatically pop into the written records down at the courthouse, so after five years, the adverse possessor or easement user must bring a quiet title suit to get a marketable title on the record.

In an urban setting like yours, its the tax payment requirement that usually trips up a neighbor's claim to have acquired a strip of land along the boundary by adverse possession. Since city lots are appraised, and hence taxed, largely on the basis of legal description rather than an appraiser's eyewitness opinion of size and value, an adverse possessor can rarely show that he has paid the taxes on the strip.

Beware, however, of letting the neighbor make improvements, thinking the land is his, while you sit back and let "the fool" improve your land. Courts have shown a tendency to grant an "easement by estoppel" to an innocent improver who was misled into mistaken outlays.

As a practical matter, you might want to give your neighbor a revocable license to use the strip of land. That alone would remove the element of "hostility" since his use would then become permissive. That would, with the property tax payments, give you two defenses to a claim of adverse possession or prescriptive use.