Legal Question in Real Estate Law in California

Re: Hidden Encroachment

Without reviewing any documents, my assessment is that the neighbor's claim is to an "easement implied from a quasi-easement." Your neighbor would have to establish:

1. Prior common ownership of the dominant (her) and servient (your) estates (i.e., parcels);

2. The common owner's apparent and continuous use of part of her land to benefit another part (the "quasi-easement," so called because an owner cannot have a true easement on her own land);

3. The transfer of one of the parcels (severance); and

4. The necessity at severance for the pre-existing use to continue.

In #2, the "apparent use" requirement means that, at severance, the buyer (you) expected or should have expected to receive land burdened by the easement. If you neither had nor reasonably should have been on notice as to the easement, this condition is not met and there is no easement. Deciding this question is somewhat technical but you seem to win on this; the existence of a garden does not lead a reasonable buyer to suspect a leachfield (or so your argument would go, at least).

In #4, "necessity at severance" also gives you an opportunity to defeat the claim of easement. The issue is whether the easement was necessary at the time of your purchase of the property, and "necessity" has a technical, legal interpretation. Generally, a use is "necessary" if the claimant must expend considerable money or labor to obtain or create a suitable alternative. This is a question of fact as well as law, so the resolution depends upon whether alternate leachfield sites were available on the retained land.

Note that the seller has the burden of establishing all the prerequisites for an easement by implication, and so you win if you defeat her argument under either #2 or #4.

Disputes of this sort between neighbors should be resolved by negotiation or mediation, but it can't hurt to have all the facts and all the law at your disposal when at the bargaining table.

Re: Hidden Encroachment

The question may be whether her "garden," if it is hers, was enough to give you notice of any sort of easement. See a real estate lawyer about this, and bring your title insurance policy with you for his/her review.