Legal Question in Real Estate Law in California

fence encroachment

We purchased a new home 6 months ago. During our walkthrough we requested a missing property line marker be found and made evident. Two weeks after closing escrow, the surveyor located the marker which showed our neighbor's fence encroached on our property.

The builder could not persuade the neighbor to move the fence (neighbor claimed he owned land by agreement with former owner).

We requested assistance from our title company. They said we were covered but that all they were willing to do was pay our loss and do a boundry line adjustment. We requested they provide us with an attorney to sue the neighbor to move the fence and unencumber our property. We want the fence moved. Who should pay for attorney's fees to get this fence moved?

Thank you.


Asked on 4/07/01, 6:23 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: fence encroachment

Is this agricultural land? There is an express provision in the Code of Civil Procedure (section 1021.9) allowing a prevailing plaintiff to recover his attorneys' fees for trespass to lands under cultivation or used for livestock.

The general rule in the United States is that each party pays his/her/its own attorneys' fees unless there is a specific law or a contract clause providing otherwise. Except for the above, I do not know of any provision in your favor.

I think you are fortunate that your title company has offered to go as far as they have.

"Owning land by agreement with prior owner" may not be legally effective. With infrequent exceptions such ownership transfers must be in writing.

If the disputed property is worth more than a few thousand bucks, it is worth the cost of a local real-estate attorney's fees to investigate the matter and advise you. Dealing with neighbors also raises issues of tact and diplomacy and what price to put on good relations. Negotiation is better than suit.

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Answered on 6/06/01, 5:59 pm


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