Legal Question in Real Estate Law in California

First, on the side street matter, it isn't uncommon in California for the boundary line between adjacent private properties to be in the middle of a public street or road. Two sides of my property in rural west Marin are on the centerlines of county roads. Under the Streets and Highways Code, private owners in such a situation have little or no right to treat the property that constitutes the right-of-way of the street or road as their own, but on the other hand, the County is responsible for roadside trees that blow down. I guess the theory is that having a paved road is adequate compensation for what otherwise would be a "taking" of private property for public use under the 5th Amendment.

As to your neighbor. I think the first thing you should do is verify their claim by taking a close look at whatever survey he's depending upon for his opinion as to where the boundary line runs. If you have any reason to question its accuracy, hire your own surveyor. Errors do occur.

Next, if there is an encroachment, you have perhaps as many as three theories of defense that would prevent imposition of the harsh remedy of abatement of the trespass by removal of part of the building: (1) Prescriptive easement; (2) statutory good-faith improver of the land of another, Code of Civil Procedure sections 871.1-871.7; and (3) the equitable doctrine of "relative hardship," "balancing conveniences," or "equitable easement" (all three of these terms really refer to the same concept).

If you could establish a prescriptive easement, you would have to share use of the easement land with the owner, and if the encroachment claimed as a prescriptive easement is inside a building, that isn't possible, and you couldn't get a judgment for easement by prescription. There may be some doubt about the applicability of "good-faith improver, see CCP 871.6. So, #3, the "equitable easement" route, may be the best theory, but your lawyer should examine all three.

I should also mention "adverse possession," but one of the requirements is payment of all the taxes on the adversely-possessed property for five years, and since urban properties are usually assessed by deed description rather than an assessor eyeballing the property, the chance that you've paid the taxes is slim. There is also an "agreed boundary" theory where courts have held when neighbors accept a particular naural feature, old fence, etc. as the boundary, then that's where it is, the survey be d----ed; but this theory is obsolete in urban settings, where the surveys almost always prevail over tradition.

I have just concluded an equitable easement case where I represented the encroaching defendant. The case is "under submission," and I don't yet know whether we won or lost, nor the judge's reasoning.

I might add that under either good-faith improver or equitable easement, the court will probably require you to compensate the neighbor for the pro-rata fair market value of his property (land) upon which the encroachment sits. This is probably gonna be a lot cheaper than modifying your building. Maybe you'd be better off negotiating a lot-line adjustment or giving them the storage they want. Get it in writing.

Get an attorney, you're going to end up in litigation over this unless you can negotiate a settlement yourself. You're facing claims and defenses that will be complex and serious to the survival of your building and business. If serious about doing so, feel free to contact me.

I have dealt with and litigated issues of encroachment, property line disputes, easements, adverse possession, doctrine of agreed boundaries, lot line adjustments, and others. I know these issues better than any other attorney I know. The new owners do not know where the property line runs because the maps and surveys are not always correct. Through real estate law principles such as adverse possession, if you paid taxes on your property, you may have acquired title to more than the land illustrated on any map or survey. This law controls over maps. I have litigated and won on near-identical issues where I have used county tax and map officials as expert witnesses.

Contact me for a free consultation to help protect your rights.

Best,

Daniel Bakondi Esq.

The Law Office of Daniel Bakondi

870 Market Street, Suite 1161

San Francisco CA 94102

Daniel Bakondi, Esq. [email protected] 415-450-0424

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San Francisco Litigation Attorney

Just a word of warning. Daniel Bakondi was admitted to practice law less than four years ago. If he knows more about this than any lawyer he knows, he obviously doesn't know many lawyers.