Legal Question in Real Estate Law in California
Prescriptive Easement
A neighbor recently purchased a piece of property that is adjacent to both of our properties. Fourteen years ago, when I purchased my property, I re-built a delapidated fence that was, presumably, on the property line between my lot and this adjacent lot. The previous fence existed for about 20 years prior to my re-building it. My neighbor is now claiming, as per a supposed survey she commisioned, that my fence encroaches on about 440 square feet of her newly acquired lot, and is asking for monetary compensation if I wish to keep my fence where it is. I have my doubts about her claim, but assuming she is correct, doesn't prescriptive easement or somethine similar apply here - i.e. 14 plus (probably 30 plus)years of constant and obvious use of the disputed 440 square feet, which constitutes an often used portion of my back yard.
2 Answers from Attorneys
Re: Prescriptive Easement
Let's start by distinguishing two similar but not identical concepts (which you may already understand, but others read these answers). Adverse possession transfers fee ownership from the owner of record to the person adversely in possession. The requirements are open, notorious and hostile possession continuously for five years, and payment by the adverse possessor of all property taxes.
The other concept is easement by prescription. It likewise requires five years of open, notorious and hostile use (rather than exclusive possession) but (usually) does not require payment of taxes. The result is an easement, not ownership, and the record owner still continues to enjoy the fruits of ownership, so long as he does not interfere with the use of the easement.
Your facts probably describe a prescriptive easement. However, it is possible (but not likely) that you have acquired title to the strip by adverse possession. This would depend in large part upon whether you have paid the taxes. i.e., whether the strip of land is included in your assessment. Probably not, since county appraisers usually work from legal descriptions rather than field observation of fences.
Your question suggests that you question the validity of your new neighbor's survey. If it was done by a licensed surveyor and recorded in your county, it is entitled to a presumption of validity. Your should obtain a copy (try the recorder's office) and check for the location of monuments the survey shows were placed to mark the boundary.
You did not say whether the money the neighbor asked you to pay would give you only a license to maintain the fence, or an easement, or fee ownership. If the latter, you might need to apply for an official lot-line adjustment.
After you have all the facts -- i.e. you agree on the location of the (original) boundary and know whether you have a prescriptive easement or title by adverse possession, then consider the relative value of the 440 sq. ft. to you and decide whether to (1) pay the money; (2) sue for quiet title for adverse possession; (3) sue for quiet title in the easement; (4) negotiate from a position of strength, but out of court; or (5) something else.
Re: Prescriptive Easement
Must be open and notorious use to gain prescriptive rights. Question whether prior owner knew fence on property, etc. Many questions. Call to discuss. Don Holben 800-685-6950
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