Legal Question in Real Estate Law in California

I'd say you are on shaky legal ground if this goes to court. While courts can allow encroachments under an "equitable easement" theory or even on an easement-by-prescription basis, they can and do often require the adjoining owners to observe their surveyed boundaries quite strictly. Here is an excerpt from a trial brief I wrote a few years ago:

"See, for example, California Easements and Boundaries: Law and Litigation (CEB, 2009) at �8:24:

'Another doctrine that is used to adjudicate the rights of the parties, particularly in encroachment actions, is the doctrine of relative hardships. This is an equitable doctrine that allows a court to balance the equities and not only refuse an injunction to remove an encroaching use but individually tailor relief based on the circumstances. This principle is illustrated by cases such as Linthicum v. Butterfield [175Cal.App.4th 259, decided June 24, 2009, rehearing denied Sept. 9, 2009]; Hirshfield v.Schwartz (2001) 91 Cal.App.4th 749........Field-Escandon v. DeMann (1988) 204 Cal.App. 228......and Christensen v. Tucker (1952) 114 Cal.App.2d 554...... CEB California Easements and Boundaries, supra, at �8.24, pp. 386-387 [case capsule descriptions omitted; emphasis added].' "

I lost the case - the judge told my client the fence needed to be moved six inches to place it on the surveyed property line.

The Linthicum v. Butterfield case is probably most supportive of your position, and I suggest you look it up on line or at your county's law library. However, I think you are more than 50% likely to lose in court if it goes that far.....your hardship is probably not sufficient to convince a judge that equity requires giving you an easement. It's a close call. I recommend negotiation rather than a trip to court.