Legal Question in Real Estate Law in California

Ask her if her only reason that she feels the wall legally can be where it is because she has a prescriptive easement and that she would agree you could demand it must be torn down if she does not. Then ask her to state in detail what a presciptive easement is. Then show her from a lawbook or a web download that it was not hostile as you did not know the wall was on your property, it was not notorious, if she has lived there less than 5 years she does not meet the 5 year terms as she can not count what the other owner did as he was not claiming it was hostile. Check the local ordiances as to how high the wall is allowed to be, did she meet all the permit requirements if permits required, are there any defects in the construction, etc. A prescriptive easement is not exclusive, you can not be prevented from using the property which obviously occurs with a 6 foot wall.

If she will not tear down the wall, you probably need an attorney to send her a demand letter, mentioning what damages she will have to pay. If you need to do that, I can handling it at a less expensive rate.

Good luck.

The previous answer is, IMHO, inaccurate. The neighbor will not prevail in court on her prescriptive easement theory, but not for the reasons given.

Your defense to the prescriptive easement claim would be based on current judicial philosophy in California that urban boundaries must not be adjusted from true (survey) locations by permanent barriers such as fences, walls, structures, etc., because that is tantamount to a taking of the fee. One can acquire fee ownership of someone else's land by adverse possession, but not by prescription.

The main difference between the two is payment of the property taxes for five years. Adverse possession requires paying the property taxes for five years, and since taxes are usually assessed and collected based on legal description, not walls and fences, you, not the neighbor, have paid the taxes on the disputed land and there has been no adverse possession.

Since she doesn't meet the adverse possession criteria and because the court won't adjust a boundary based only on a prescriptive easement theory, the neighbor loses.

I agree with Mr. Whipple. What she has done is create an encroachment, not a prescriptive easement. If you need to, you can sue her to remove the encroachment.

It is a complicated issue that may involve easements, doctrine of agreed boundaries, adverse possession, and others. I have litigated these issues in court successfully. Please send me an email if you would like a consultation.

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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