Good fences make good neighbors. Good neighbors respect one another's property. This proverb appears in the poem “Mending Wall,” by Robert Frost. Unfortunately, it is not that simple. Legal analysis of boundary or property line disputes generally falls upon common sense lines, e.g. length of time (statute of limitations), how it is used (equity) and preserving the status quo. Generally, if someone has used a portion of another’s land without the true owner complaining, he can continue using that portion forever. Real property is unique, and a clever lawyer can combine elements to fit the facts of your case.
The basic theories used in boundary disputes include, adverse possession, prescriptive and equitable easements, and agreed boundary. Adverse possession is rare because of the legal requirement for the claimant to pay the property tax of the true owner for five years over the property being adversely used. In practice, most neighbor boundary disputes concern prescriptive and equitable easements. In California, two leading prescriptive easement appellate cases were decided in 1996, Mehdizadeh v.Mincer and Silacci v. Abramson.
Prescriptive Easement. To establish a prescriptive easement, the claimant must prove use of the property, for five years, which use has been open and notorious, continuous and uninterrupted, hostile to the true owner, and under claim of right. The beauty, or horror of a prescriptive easement, is it arises by operation of law. Meaning automatically after five years of adverse use.
Equitable Easement. Typically, the doctrine requires that (1) a party has used and
improved the equivalent of an easement for a long span of time with an innocent belief that he had a right to use the easement; (2) irreparable harm would occur if the party could not continue that use; and (3) the servient tenement would suffer little harm from that continued use. Hirshfield v. Schwartz (2001) 91 Cal App 4th 749. In that case a fence was erected in what appeared to be the boundary and over 18 years substantial landscaping improvements were made without objection by the true owner. Applying the relative hardship doctrine, the trial court found that equities balanced in the encroacher's favor and entered a decision accordingly.
While possession is 9/10 of the law, the critical tenth is what the courts possess. The Court in Hirschfield summed up the equitable powers of the Court and stated:
An easement by necessityarises by operation of law when (1) there is a strict necessity for a right-of-way, such as when the claimant’s property is landlocked and (2) the landlocked property and the adjacent property with street access were originally owned by one person.
Prescriptive easements are favored because they promote the use, rather than disuse, of land. They are designed not to reward the taker or punish the dispossessed, but to reduce litigation and preserve the peace by protecting long-standing possession . . . Equity is manifestly different. When a court exercises its equity powers, its principal concern is to promote justice, acting through its conscience and good faith.
Agreed Boundary. This is a hybrid rule. If it is uncertain as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for five-years (the adverse possession and prescriptive easement statute of limitations period) or under such circumstances that substantial loss would be caused by a changing the boundary, the court may invoke the agreed boundary rule.
Agreed boundary doctrine requires that a boundary may be established by agreement
between coterminous landowners where the true location of the boundary is uncertain or in doubt. Most cases state that there must have been a prior dispute and that the dispute was resolved by apparent or express agreement. (Ernie v. Trinity Lutheran Church (1959) )Again, the courts focus on if there was an issue, and it was resolved for five years, then that is the new property line even if both sides were previously wrong as to the location of the property line.
In Bryant v. Blevins (1994) 9 Cal.4th 97 the California Supreme Court held that where property boundaries are established by publicly recorded surveys, an owner may not alter the dimensions of his land merely by building a fence on his neighbor’s land even if that boundary is agreed to between the neighbors.
Agreed boundary casesare very fact and equity specific. One case held that if the fence does not run the whole distance of the alleged boundary, it cannot constitute
the agreed boundary. While another held that there was an agreed boundary where the only visible marking was a single tree! Further complicating the matter is the related equitable estoppel doctrine as to boundary or property line disputes. (Frericks v. Sorensen)
Adverse Possessionrequires that the real property taxes for the dispute portion to be paid by the claimant. While rare, an argument can be made that the county assessor sometimes make a visual inspection and the tax is based upon what the assessor sees. E.g. if a fence is on part of a property then that is included in the amount of taxes for that owner. Gilardi v. Hallam (1981)
Title Insurance. While an encroachment or prescriptive easement is a defect to title, the normal title policy issued is under The California Land Title Association (CLTA) Standard Policy Form which only insures against matters of record title, not unrecorded easements and encroachments. For a much higher title policy fee, a property owner may obtain extended coverage for unrecorded defects under a CLTA policy or through an American Land Title Association Loan Policy. This policy requires a physical inspection by the title officer.
Hearsay exception to boundary disputes. Interestingly, while hearsay is usually not admissible in court, there is an exception in a boundary dispute case in which the person who made a statement that shed light on the boundary’s history is dead or otherwise unavailable. Testimony about the statement of the absent person may be admissible as an exception to the hearsay rule as evidence in such an instance.
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