Legal Question in Real Estate Law in California

Ask the potential neighbor how much they want for either ownership or an easement on the six-inch slice, rather than move the house. You might also discuss this issue with a title insurance company, as this will be a bone of contention. If the neighbors are going to be unreasonable on this, they might be unreasonable on other issues as well -- trees, fencing, pets, noise, etc. You should give that due consideration, as well.

I would myself be very reluctant to buy a property that was subject to a potentially legitimate claim of this serious nature unless the price reflected a substantial discount because of the encroachment issue, and I'm a lawyer and theoretically able to evaluate the risk and work for myself to solve the problem through negotiation or lawsuit.

There are some legal concepts, reflected in case law, that frequently mitigate the harsh result of a past innocent mistake by someone who built an encroaching structure.

Note that this situation probably does not fall under the "good faith improver of the land of another" statutes (Code of Civil Procedure sections 871.1 - 871.7), which do not apply to encroachments.

On the other hand, there is a three-year statute of limitations for trespass to land. When the trespass is an encroachment by a permanent structure, the trespass occurs and the statute of limitations begins to run, subject only to a possibility that the limitations period does not start until the plaintiff knows, or should have known, that there was an encroachment.

All in all, this purchase is not one for the faint of heart, and a difficulty in getting good title likely would interfere with obtaining financing.

You can always make an offer contingent on the seller clearing up the encroachment.

Surveys do not always control. I have litigated property line disputes. Let me know if you are serious about representation.

Best,

Daniel Bakondi, Esq.

[email protected]

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

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