Legal Question in Real Estate Law in California
Issue:
Family -owned business owns property in California that is adjacent to a freeway offramp. Property was purchased in 1964, at that time there was a 5 foot cyclone fence along the property line between the land belonging to the state of California and the business property.
Within 6 months of purchasing the property the owner of the business became the victim of several commercial burglaries. The perpetrators were cutting the cyclone fence open and gaining entry into his yard where he stored expensive industrial trucks and tools, etc.
To combat this, the property owner took it upon himself to add five feet of cyclone fencing to the already existing fence (owned by the state). Making the fence 10 feet tall and for extra security he added corrugated metal to the fence which made it impossible to compromise the cyclone fence and enter his property.
On March 13, 2010, 46 years later, the State of California served the property owner with a notice of encroachment, giving him 5 days to remove the corrugated metal from the fence.
The original property owner has since died but his son now is in charge of the family business and is reluctant to remove the corrugated metal from the fence because it will once again subject the property to breaches in security.
The problem the state appears to be having is that gangs have been using the corrugated fence as a canvas for their graffiti art. The property owner had been maintaining cleanup of the wall at a rate of twice monthly at $400 per cleaning. But , suddenly the state says that is not good enough.
This property is located in Oakland, CA. You would be hard pressed to find any accessible surface not touched by graffiti at one time or another.
The question now becomes, who's fence is this now that the property owner has added equal amount of fencing to it and covered it with the corrugated metal and has been maintaining it for 46 years , all within the open and notorious view of the State of California and the state has never claimed the fence as their own. The State has given the property owner previous notices to clean the fence up and the property owner complied. Now the state is claiming ownership and the right to demand removal of the corrugated metal. Can the state do this? What can the property owner do to assert their position regarding the security issues, etc.
Please, any ideas will be greatly appreciated and time is of the essence. The state has assessed a $350 fine for every day the fence stays up past the 5 days.
2 Answers from Attorneys
You need to take down the fence. You cannot obtain rights to state property due to the state's neglect to assert it's rights, the way you can private property when the owner fails to assert ownership. You are free to construct your own fence within your own property.
I would like to look at the situation. there may be several ways in which you may be compensated, such as unjust enrichment. There also may be a premises liability issue there. Also, I would check to see who really owns the property - sometimes they say it is the state but really isnt technically. I have dealt with adverse possession, easement, and boundary line dispute litigation.
Send me an email if you are interested in trying to win this, or at least get something out of it.
Best,
Daniel Bakondi, Esq.
415-450-0424
The Law Office of Daniel Bakondi
870 Market Street, Suite 1161
San Francisco CA 94102
www.danielbakondi.com
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