Legal Question in Real Estate Law in California

Re: Prescriptive Easement and Adverse Use

Most likely it wouldn't be prescription of an easement, since enclosing land with a fence results (more or less) in exclusive possession rather than easement-type (non-possessory) use. However, it certainly could be adverse possession, and as you probably know, it takes only five years to acquire title in California.

The essential elements of adverse possession are:

1. The possession must be by actual occupation and must be open and notorious; that is, the circumstances of the claimant's possession must be such as to constitute reasonable notice to the record owner.

2. Possession must be "hostile" to the true owner's title, i.e. without permission as by a lease, license, co-ownership, etc. etc.

3. Possession must be exclusive and uninterrupted (but two or more successive adverse possessors can meet the requirement) for five or more years. Possession can also be by a tenant of the adverse claimant.

4. Possession must be held under a "claim of right" or a "color of title."

5. The claimant must have paid all property taxes levied and assessed during the five year period.

Under the decisions I have looked at, the construction of a fence increasing one parcel's apparent size and decreasing the neighbor parcel's apparent size does not amount to adverse possession unless the tax assessment is changed to reflect the apparent size rather than the record size.

In other words, if your tax assessment didn't change as a consequence of the fence, you have been paying taxes on the disputed portion of your lot. This is sufficient to defeat the adverse possession.

Nevertheless, it is time to defend yourself, or, perhaps more accurately, to go on the offensive. I recommend bringing a trespass suit at once. You should consult a real-estate attorney in your county.