Legal Question in Real Estate Law in California

Re: Help! My neighber is trying to take my gate down!

The short answer is that she can do it if she can establish that your fence is actually on her property. But typically, a court order will be required.

First things first, you should immediately commission a survey of the property line. You will need to hire a licensed surveyor; it will probably cost a few thousand dollars. He/she will review the recorded deeds and also come out to the property to determine the exact location of the boundary.

If your neighbor is wrong, you then tell her to back off.

If your neighbor is correct, you then decide how hard you want to fight. You can push a lawsuit and argue that you possess prescriptive rights over the area; but this is going to be expensive and likely a loser in the end, because the law does not recognize exclusive prescriptive rights. If you want to use a lawsuit as a negotiating tool, then that's always an option too.

Good luck.

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Re: Help! My neighber is trying to take my gate down!

The first thing you should do is contact a surveyor and verify the property line to confirm whether or not your neighbor's claims are true. Your neighbor might even agree to split the cost. If your neighbor is wrong, then that should be the end of this issue.

If your neighbor is correct, then I would contact a local real estate attorney for a consultation. The laws regarding agreed boundaries and adverse possession are very arcane and technical. If I were your attorney, I would want a lot more history on how the fence ended up where it was built and other information that you haven't posted.

Re: Help! My neighber is trying to take my gate down!

Resolving this dispute must start with verification of the location of the true property boundary. You don't mention whether the neighbor is armed with a recent survey or not. A recent, high-quality survey is a necessity, and due to modern instruments, should not be too expensive, especially in an urban area where short distances and cleared terrain are involved.

Assuming the survey discloses that your fence or gate are encroaching, you have a difficult situation facing you. You probably haven't acquired ownership by adverse possession, because this requires payment of the taxes, and you've probably been assessed on the basis of your deed square footage, not an appraiser's mistaken impression based on seeing the fence.

Further, the principle of agreed boundaries, which says when neighbors acquiesce in the location of a fence, etc., that becomes the boundary despite its technical mis-placement, is rarely invoked by courts in urban settings; judges feel that surveys rather than traditional accepted lines should prevail to avoid chaos.

Another possibility is that you may have acquired an easement. Easements can be acquired by prescription, almost as title is acquired by adverse possession. The tax-payment requirement is also present, but as easements aren't usually separately taxed, the requirement is satisfied. Here again, however, courts are somewhat reluctant, in an urban setting, to recognize a prescriptive easement for a boundary fence when the effect of the easement, and the fence, is to snip off a strip of someone's deeded property and give it to the neighbor. The idea is that an easement is a non-exclusive right to use someone else's land, and that an easement for a mis-placed boundary fence would go much further and effectively deprive the owner of the burdened property of the fee.

Beyond that, there is a principle of easement by estoppel or "equitable easement" whereby if Owner X stands by, saying nothing, while Owner Y improves the boundary area, thinking he is improving his own property, when in fact he is improving the land of Owner X, then Owner X is estopped (equitably prevented) from denying that he has granted Owner Y an easement for the improvements. This might work in your case; it is sometimes invoked to prevent a hardship such as you face.

There remains the possibility that a court would find that the fence is a trespass and order it removed, end of story. That's why you need as good a lawyer as the value involved warrants.

Re: Help! My neighber is trying to take my gate down!

The question I have is how are they trying to make you take down the fence? Have they sued you? Are they simply asking you to?

The answers to my above questions will dictate what you should do next.