Legal Question in Real Estate Law in California

Re: Existing fence encroaches on neighbor's property

Yes. Yours is a classic case of an easement by prescriptive rights. Tell your neighbor you have no obligation to remove or move the wall and let him consult his own legal counsel. I doubt he will take it very far. If he does, you may feel free to contact this office for assistance.

Re: Existing fence encroaches on neighbor's property

I would like to suggest a different interpretation. To me, this situation seems less one of an easement by prescription than one of a related but differing nature, i.e. adverse possession. The reason is that an easement is a nonpossessory interest in the land of another. Here, the facts show that you or your precursors have actually possessed the neighbor's land enclosed by the wall. The nature of your interest in the enclosed land, if any, is therefore (I think) title by adverse possession rather than a mere easement by prescription.

Nevertheless, your case is not a 'slam dunk.' A person claiming title by adverse possession (or an easement by prescription, for that matter) has the burden of proof of all the necessary elements thereof.

For adverse possession, you would have to show 'open, notorious, exclusive, adverse and continuous possession' for a five-year period, and that you had paid the taxes on the disputed property. Also, since your claim is apparently based not upon a disputed instrument ('color of title') but upon what was initially a trespass and may have ripened into adverse possession ('claim of right') you have a greater burden of proof as to possession, etc. since this type of taking of land is disfavored.

In order to obtain marketable title, you would have to get a quiet title decree and record it. This means filing suit and proving your case.

It is possible the outcome could hinge upon the understandings between the owners and other circumstances at the time the wall was first built. If the owners agreed explicitly or tacitly that the location of the wall was a guess and not an agreed boundary, the subsequent possession by your precursors may not be sufficiently hostile or adverse, and you could lose.

The outcome might also hinge on who paid the taxes on the disputed land. Since there was probably not a separate tax bill, this might hinge upon what quantity of land the assessor used in computing the taxes on each parcel, especially the vacant one.

A final thought is that if the neighbor argues that the wall is on his land, doesn't that make it his wall? Therefore, his expense to remove it? I don't know the answer and it may depend on the facts surrounding its construction, but it's an argument to consider.

My recommendation is to negotiate something based on the possibility that you might lose, and that even to win you have the cost and burden of proceeding and of proof. Possibly you could agree that the land is his without court contest if he agrees to remove the wall at his expense and to use the questioned land for something innocuous to both, such as lawn or garden.