Legal Question in Real Estate Law in California

Re: Land Rights

To start with, I would write them a certified return receipt letter stating that you understand the fence is on your property and you do not waive any rights to those three feet that they are using. You may have to take other steps to protect your rights, feel free to contact me if you wish to discuss.

Re: Land Rights

You need to act now because over time you will lost your claim to this piece of land, if you have not already done so. You will need an attorney for this. Our CA attorney is very experienced in real estate law.

Re: Land Rights

To start, the Louisiana lawyer's advice is largely inaccurate, but what would you expect from someone licensed in the only state with a legal system based on Civil (Roman) Law, rather than the (English) Common Law of the other 49 states.

Also, strips of land between neighbors rarely change ownership through adverse possession in California, nor is it easy to acquire a prescriptive easement in inaccurately-fenced land.

One of the reasons is that in order to acquire title by adverse possession, one must pay all the taxes assessed on the land for five years. Since most property-tax assessments are based on the legal descriptions, rather than an appraiser eyeballing the land within the fences, an error in locating the fence does not shift the payment of taxes from the record owner to the encroaching neighbor.

The possibility of a prescriptive easement is a somewhat greater threat, since easements are rarely taxed separately, and thus there are no taxes for the prescriptive user to have to pay. All of nothing is still nothing. Nevertheless, the judicial policy in California disfavors giving prescriptive easement rights to neighbors where the result is a de facto enlargement of X's parcel at Y's expense. A prescriptive easement for ingress and egress is one thing; but an easement for a larger yard is considered to be tantamount to depriving the owner of the fee.

If you send a certified letter (or just hand it to the neighbor in front of a witness), the letter should stress that you are giving him permission to use the three feet for the time being, but that the permission is revocable at any time. The reason for this is that part of "adverse possession" is that it must be "adverse." If the neighbor's possession is by permission, it can't be adverse, and hence no rights accrue, regardless of who pays the taxes.

The time for adverse possession to mature into title, or for an easement to result from prescriptive use, is five years in California. If the installation of the fence and the earlier neighbor's use of the extra land began less than five years ago, there could be no property loss yet in any case, and the letter alone should be sufficient to prevent it. If the situation has persisted more than five years, you'd need to rely upon the tax-payment requirement as a defense, although it's almost always a good one.

Please contact me with details if you'd like a more detailed (free) evaluation.