Neighbors, Fences and Boundaries

Boundary disputes between neighbors are one of the more common reasons for real estate litigation. The most typical boundary lawsuit arises from the discovery that a fence or wall built many years earlier is not located on the legal boundary between the properties. One homeowner will point to the survey as the true boundary while the other will point to the fence or wall as the true boundary. These neighbor disputes are rarely resolved short of the hiring of real estate attorneys, the filing of lawsuits and heated and emotional litigation.

Which is the correct boundary?

Boundaries are first and foremost determined by the legal description contained in the deed. Therefore, the best way to determine the proper boundary between two properties is to commission a survey. While two competing surveys may show minimal variance, the boundary is determined by the legal description and not where someone in the past decided to build a fence, erect a wall or plant some trees.

How Do I Establish The Correct Boundary?

Notwithstanding a survey showing the true boundary, adjoining landowners rarely agree to give up property they thought was theirs. Discussions and negotiations prior to litigation are rarely successful in resolving a boundary dispute. In fact the heated conversations relating to boundaries often lead to fights, police visits and temporary restraining orders. Property owners are left to file a lawsuit. Lawsuits to determine boundaries often ask for declaratory relief and to quiet title to property. The aggrieved property owner who is losing land will usually claim defenses such a prescriptive easement, agreed-upon boundary and laches.

Quiet Title Lawsuits

A quiet title lawsuit merely describes the dispute and asks that the court make a determination that the plaintiff is entitled to the property.

Prescriptive Easements and Adverse Possession

Prescriptive easement litigation involves a claim by the defending landowner that he or she has used the property for the statutory period of five years and that the use has been (1) open and notorious, (2) continuous and uninterrupted, (3) hostile to the true owner, and (4) under a claim of right.

Adverse possession and prescriptive easement are two similar concepts. In a claim for adverse possession, a party must establish the same four elements as for a prescriptive easement but also show the payment of all taxes assessed against the property during the five year period. Adverse possession seeks ownership (title) over the disputed property while a prescriptive easement merely seeks the use of the disputed property. Because property taxes are levied based on the legal description (and not based on the position of a fence or wall), adverse possession in California is almost impossible to establish.

Real estate attorneys and courts often mistake the two concepts of adverse possession and prescriptive easement and much of the California Courts of Appeal authority on boundary disputes deals with clarifying the difference between the two. A prescriptive easement confers a nonpossessory and restricted right to a specific use or activity upon another’s property and that right is less than the right of ownership. A common example includes a right to use another’s driveway to access one’s property. The neighbor can drive over the driveway but he cannot fence it in and claim it as his own.

Problems arise when an attorney argues for or a court grants an exclusive prescriptive easement and therefore allows the adjoining property owner to fence off the land on which the court has granted the easement. The California Courts of Appeal have repeatedly denied this type of relief. “If the effect of the prescriptive easement is to divest the property owner of all rights—use, occupation, enjoyment—owners customarily have in residential property, the grant of a prescriptive easement is generally error.” As another court held, “the notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute. An easement, after all, is merely the right to use the land of another for a specific purpose—most often, the right to cross the land of another.”

Neighbor boundary disputes may be simple issues to analyze from a legal perspective but often lead to long and drawn out litigation. While a real estate attorney may advise that the boundary is determined by a survey based on the legal description, the neighbor who is losing part of what he thought to be his property rarely gives up ‘his’ property voluntarily. While there is sometimes a chance that the neighbor can argue for an easement, it is very rare that the neighbor can establish title to property that the legal description says is not his.