Legal Question in Real Estate Law in California
Real Property Encroachment
April of 2003, we looked at a property to purchase. We bought the property and moved in September of 2003. Now, April 2004, the property owner behind us has come over and told us that the permanent fence which existed when we first inspected the property is well over the property boundary. He is stating that the fence line should be at least 10-15 feet back onto our property, providing him with more property on his side of the fence. He stated that the previous owner erected the fence several years ago and he never did anything to correct it. The reason he approached us was because we were tightening the tension wire on the fence to secure it better. We also installed a gate for his tenants to bring their horses through so that they could use the arena and not have to put them into a trailer to come over. He said he was going to have a surveyor come out and mark out the property according to his purchase agreement with the same seller as ours (the property was parceled off our property by the original owner prior to our even looking at the property). Can this owner take the land we thought belonged to us since the previous owner never told us this was an existing encroachment?
5 Answers from Attorneys
Re: Real Property Encroachment
You may have permanent right to the fence through several possible legal theories including prescriptive easement, and a theory that involves land devolving from common owner.
Joel Selik
Broker/Attorney
800-894-2889
Re: Real Property Encroachment
Your Zip suggests Clements in San Joaquin County. This area although mostly rural is not really 'rough country,' and the historical surveys and monuments probably provide a pretty reliable starting point for resurveys such as the neighbor proposes. If done by a respected surveyor, a court will give the survey considerable weight in deciding where the boundary was at the time your parcel was created (vis-a-vis the "agreed boundary" theory that says the boundary is where the neighbors put the fence).
If the survey result is NOT in your favor, then you would be left with three possibilities: (1) find a theory that moves the boundary. (2) find a theory that creates an easement in your favor. (3) sue the seller and his broker for misrepresentation.
(1) is unlikely to work; it depends upon adverse possession, and one or more of the criteria would not be met, in all probability.
(2) might work on either a prescriptive easement theory or an implied easement (easement by estoppel) theory, depending upon the facts.
(3) should also be investigated by an attorney working for you; sounds like there was a failure to disclose known facts.
Re: Real Property Encroachment
Get off your chair, and contact a real estate/litigation attorney who can really give you good advice based upon fax you presented that person, personally. There are many sophisticated questions in this situation. What you see is not what you get, what you get is illegal description on the deed. Therefore, and defense is misplaced that your problem. There is no a form of right call prescriptive easement, to which you may be entitled. I haven't heard any fax that would allow that the question is what can be done to settle this is between yourself and your neighbor, with common sense, reasonably, sensibly and and with civility.I have been practicing law in this legal area for over 30 years and understand your problem well. I practice in the S.F. Bay Area and if you wish to contact me call at 925-945-6000.
Re: Real Property Encroachment
Unfortunately, it is time for you to go see an attorney.
Depending on how long the fence has been there, you may own that part of the land, no matter what a surveyor says. If it hasn't been there that long, you might have a cause of action against the seller or the title company.
Re: Real Property Encroachment
You have a claim for an easement I think. How long has the fence been their? Go to a lawyer ASAP. I wouldn't let him take down the fence without seeing a lawyer first. Also, what kind of deed did you take the property with? YOu may contact me, I've worked on similar matters.
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