Legal Question in Real Estate Law in California
Perscripitive Rights
I own a home in Los Angeles CA for apx 10 years. An existing fence was put up between my home and the neighbors 11 years ago. It was not put on the property line by prior owner. Last week my neighbor informed me she was moving and is currently in escrow with a close date of MAY 10th 2006. I had my property surveyed and learned that her deck landing and a 15 foot wide X 10 feet deep latice fence that she has errected on the existing 4 Ft high fence is encroaching on my property. I advised that I would be putting a new fence on the property line, she told me that I could take down the latice fence I said I would, however send her the bill for that portion as it is an additonal cost to the one I will have to incur for removing the exisiting fence between our homes, she called her attorney and is not citing perscriptive rights? Question: Because she errected a latice fence on an existing fence that was not on the property line apx 6 years ago does she have perscripitive rights? because of the size of my lot the encroachment is 4 feet in some spots to 1 feet in others. Also I have been paying the property taxes on this land for 10 years. Any suggestions
1 Answer from Attorneys
Re: Perscripitive Rights
You would probably win this case if ably represented in court, arbitration or settlement negotiations.
It is true that paying the taxes prevents a taking by adverse possession and in some cases would prevent a prescriptive easement. However, an easement isn't usually separately taxed, so the tax-payment defense doesn't work to prevent acquisition of an easement by prescription.
Nevertheless, the trend of modern decisions is to deny easements by prescription in urban settings which result from mis-placed fences, encroachments, etc. and the effect of which would be to transfer possession and control, which is not a proper purpose for an easement.
Even so, you might lose if the equities favor the neighbor, e.g., if you had knowingly stood by without saying 'that's MY land!" and let the neighbor make expensive improvements to it. This would be a so-called equitable easement or "easement by estoppel."
So, it's a bit complicated, but again I think you would prevail in court under the facts given, but not every non-specialist lawyer will know the right cases or legal principles.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
