Legal Question in Real Estate Law in California

I would be remiss if I did not advise you to hire an attorney to help you with your response.

That aside, here are some ideas for drafting your answer.

A defense that you might propose is that the neighbor's claim is barred by the California 5-year statutute of limitations set forth in California Code of Civil Procedure section 318, which provides: "No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action." Because your neighbor has been out of possession of the property for more than five years, his claim is barred.

You might also think about making a counterclaim for declaratory relief (quiet title) based upon California Code of Civil Procedure Section 325, which provides:

"For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

"First--Where it has been protected by a substantial inclosure.

"Second--Where it has been usually cultivated or improved.

"Provided, however, that in no case shall adverse possession be considered established under the provision of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, State, county, or municipal, which have been levied and assessed upon such land."

Basicly you are asking the judge to order that the property on your side of the fence belongs entirely to you because you and your predecessors have enclosed, possessed, improved and cultivated it, and have excluded the neighbor from it, openly, notoriously and hostilely, for five years.

To acquire title this way, by adverse possession, you also need to prove that you paid taxes on it for five years, also. I am not aware of any cases on this, but you might try arguing that the county assessor, when it inspects the property from time to time, probably assumes that the property on your side of the fence is yours and assesses you accordingly, and that you would expect your tax bill to go down and the neighbors to go up if you are forced to move the fence.

If the judge does not buy that argument regarding your (and your predecessors) having essentially paid the taxes for more than five years, he/she should at least give you a prescriptive easement over that sliver of property because you have met all of the requirements for adverse possession except for payment of taxes. An easement gives you the right to continue to occupy the property forever the same way you have been but leaves title vested in the neighbor. It would be a quite satisfactory outcome for you. You get the right to continue to use the property and maintain the fence where it is without having to pay taxes on it.