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AN ENCROACHING PARTY’S REMEDIES FOR AN ENCROACHMENT

Property line disputes, driveway disputes, what can the neighbors do or not do on the property boundaries? These are frequent questions that arise as people go to improve their properties or get an unexpected surprise from a land survey. A historical use of your property which may have once been inconsequential (is the fence on the true property line or can the neighbors really park there?) can have a big impact on your home or business properties.

An encroachment exists where a building or other improvement (such as a wall or fence, patio, or landscaping) on one property extends beyond the property line and encroaches upon an adjoining property. An encroachment may be actionable as, among other things, a trespass or a nuisance by the adjoining property owner. What remedies are available to the encroacher?

Potential theories of relief include the agreed-boundary doctrine, adverse possession, prescriptive easement, implied easement, and equitable easement. Also, in rare cases, the right to maintain an encroachment may be implied by the actions of the parties. (See, e.g., Strodel v. Wilcox (1955) 137 Cal. App. 2d 781 (parties who owned contiguous lots with buildings four inches apart, where the space between the buildings was sealed without provision for drainage, impliedly consented to metal flashing attached to defendants’ wall that overlapped plaintiff’s wall and allowed rain to drain onto plaintiff’s roof and flow to a downspout that defendants’ provided).) 

Agreed-Boundary Doctrine

“The agreed-boundary doctrine constitutes a firmly established exception to the general rule that accords determinative legal effect to the description of land contained in a deed.” (Bryant v. Blevins (1994) 9 Cal. 4th 47, 54.) Under the agreed-boundary doctrine, adjoining property owners who cannot with ease ascertain the true boundary may agree to a boundary of their choosing. (Id.) 

The person seeking to enforce the agreed boundary must prove the following elements: (1) uncertainty as to the true boundary line; (2) an agreement between the adjoining property owners fixing the new boundary line; and (3) acceptance and acquiescence of the fixed boundary line for a period equal to the statute of limitations or under circumstances that would result in substantial loss is the position of the boundary was changed. (Bryant, 9 Cal. 4th at p. 55.)

The agreed-boundary doctrine should not be applied broadly to resolve boundary disputes where there is no evidence that the neighboring owners entered into an agreement to resolve a boundary dispute and where the true boundary is ascertainable from a legal description contained in an existing deed or survey. (Bryant, 9 Cal. 4th at p. 55; see, e.g. Martin v. Van Bergen (2012) 209 Cal. App. 4th 84, 90 (agreed-boundary doctrine was not applicable to establish a fence as a boundary where a survey could accurately locate the true boundary and there was no evidence of an actual agreement between the neighboring property owners as to the boundary between their lands).)

Absent evidence of an agreement by the property owners to resolve a boundary dispute, the agreed-boundary doctrine would not be applicable to the encroacher’s situation.

Adverse Possession

To establish adverse possession, the claimant must prove: (1) possession under a claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (Mehdizadeh v. Mincer (1996) 46 Cal. app. 4th 1296, 1305; Code Civ. Proc. §325(b).) Proof of the elements required for adverse possession gives the successful claimant title to property. (Mehdizadeh, 46 Cal. app. 4th at p. 1305.)

The party claiming adverse possession bears the burden to show either that no taxes were assessed against the land or that if assessed the party paid them. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal. App. 5th 982, 1000-1001; Gilardi v. Hallam (1981) 30 Cal. 3d 317, 326.) Payment of the property taxes must be established by certified records of the county tax collector. (Code Civ. Proc. §325(b).) Ordinarily, when adjoining lots are assessed by lot number, the claimant to the disputed portion cannot establish adverse possession because he cannot establish that he paid taxes on the portion of the adjoining property he occupied and possessed. (4 Cal. App. 5th at p. 1001; 30 Cal. 3d at p. 326.)

While often the encroacher may be able to establish the first four elements for adverse possession, the failure to pay property taxes assessed against the property would defeat a claim for adverse possession. California’s parcel tax system makes this element nearly impossible to establish. For example, the fence in your side yard is really three feet over the property line towards your neighbor. You may have it landscaped and have been using it for years, however your neighbor has been paying the property taxes because the parcel map at the county assessor’s office does not care where the fence is located. The tax bill goes out on what the map shows as the square footage or acreage of the parcel.

Prescriptive Easement

While adverse possession is a means to acquire ownership of land, an easement is merely the right to use the land of another. (Silacci v. Abramson (1996) 45 Cal. App. 4th 558, 562.) With an easement, the owner of the burdened land is said to own the servient tenement, and the owner of the easement is said to own the dominant tenement. (Id.) Every incident of ownership not inconsistent with the enjoyment of the easement is reserved to the owner of the servient tenement. (Id.)

To establish a prescriptive easement, the claimant must prove use of the property for the statutory period of five years, which use has been (1) open and notorious, (2) continuous and uninterrupted, (3) hostile to the true owner, and (4) under a claim of right. (Mehdizadeh, 46 Cal. app. 4th at p. 1305.) A successful claimant of a prescriptive easement gains the right to make a specific use of someone else’s property. (Id.)

Case law has established that an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, will not be granted in a case involving a garden-variety residential boundary dispute. (See Harrison v. Welch (2004) 116 Cal. App. 4th 1084 (rejecting claim to a prescriptive easement for woodshed and landscaping that encroached upon adjoining vacant lot); Mehdizadeh, 46 Cal. app. 4th 1296 (rejecting claim to a prescriptive easement for fenced-in area over neighbor’s land); Silacci, 45 Cal. App. 4th 558 (same); Raab v. Casper (1975) 51 Cal. App. 3d 866 (rejecting claim to a prescriptive easement for part of driveway, utility lines, and landscaping on neighbor’s land); Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal. App. 4th 1182, 1187 (explaining that courts “uniformly have rejected” claims for prescriptive easements that amount to “possessory rights over parts of neighboring parcels”).)

Thus, an encroacher who is able to establish all the elements required for a prescriptive easement would likely be denied relief if the result would necessarily be for exclusive use, such as a building or a fenced in area.

Implied Easement

Civil Code §1104 provides: “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used to the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”

An easement will be implied when, at the time of conveyance of property, the following conditions exist: (1) the owner of property conveys or transfers a portion of that property to another; (2) the owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue, meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and (3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement. (Thorstrom v. Thorstrom (2011) 196 Cal. App. 4th 1406, 1420.)

The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances. (Thorstrom, 196 Cal. App. 4th at p. 1420.) An implied easement will not be found absent clear evidence that it was intended by the parties. (Id.) The law does not favor the implication of easements. (Id.)

Equitable Easement

“In appropriate cases in which the requirements for traditional easements are not present, California courts have exercised their equity powers to fashion protective interests in land belonging to another, sometimes referring to such an interest as an ‘equitable easement.’” (Tashakori v.Lakis (2011) 196 Cal. App. 4th 1003, 1010.) Most of these cases involve the determination whether a defendant should be ordered to remove physical encroachments located on the property of the plaintiff. (Id.) The courts, however, “are not limited to judicial passivity as in merely refusing to enjoin an encroachment. Instead, in a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” (Id.)

For a trial court to exercise its discretion to grant an equitable easement, the following three factors must be present:

  • First, the encroacher must be innocent; that is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute.
  • Second, unless the rights of the public would be harmed, the court should stop the encroachment if the burdened landowner will suffer irreparable injury regardless of the injury to the encroacher.
  • Third, the hardship to the encroacher from ordering removal of the encroachment must be greatly disproportionate to the hardship caused the burdened landowner by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the encroacher.

(Hansen v. Sandridge Partners, L.P. (2018) 22 Cal. App. 5th 1020, 1027-1028; Tashakori v. Lakis (2011) 196 Cal. App. 4th 1003, 1009; Hirshfield v. Schwartz (2001) 91 Cal. App. 4th 749, 759.)

Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement. (Shoen v. Zacarias (2015) 237 Cal. App. 4th 16, 19.)

Although the equitable easement doctrine is sometimes called the doctrine of “balancing of conveniences” or the doctrine of “relative hardships,” it requires that the conveniences or hardships tip disproportionately in favor of the trespasser/encroacher and that the conveniences or hardships begin tipped in favor of the property owner due to the owner’s substantial interest in the exclusive use of his or her land. (Shoen, 237 Cal. App. 4th at p. 19.) As explained in by the appellate court in Shoen v. Zacarias, supra:

[T]here are good reasons to require the trespasser seeking an equitable easement to prove that she will suffer a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner with suffer from its grant.

First and most fundamentally, courts first crafted equitable easements to prevent a property owner inconvenienced to a “minor degree” by a trespass from nevertheless engaging in “legal extortion” against an innocent trespasser by demanding an exorbitant sum in exchange for not filing suit to enjoin the trespass. This danger of “legal extortion” is greatest where the cost of ceasing the trespass is highest—that is, when the hardship on the trespasser is greatly disproportionate to the hardship on the owner—because the trespasser in that situation cannot easily avoid the “legal extortion” by ceasing the trespass on her own. This is no doubt why equitable easements have thus far been granted in cases involving permanent physical encroachments such as buildings, as well as in cases involving intermittent trespasses necessary to access landlocked parcels of property.

Second, equitable easements give the trespasser “what is, in effect, the right of eminent domain by permitting him to occupy property owned by another.” Such a right is in tension with the general constitutional prohibition against the taking of private property. This is why courts approach the issuance of equitable easements with “[a]n abundance of caution,” and resolve all doubts against their issuance. It explains why additional weight is given to the owner’s loss of the exclusive use of the property arising from her ownership, independent of any hardship caused by the owner’s loss of specific uses in a given case. And it elucidates why there must be a showing that the hardship on the trespasser be greatly disproportionate to these hardships on the owner. To allow a court to reassign property rights on a lesser showing is to dilute the sanctity of property rights enshrined in our Constitution.

Lastly, the requirement that the trespasser establish a greatly disproportionate hardship properly narrows and focuses the universe of considerations relevant to the issuance of an equitable easement—namely, whether the burden on the trespasser in ceasing the trespass is so greatly disproportionate to the burden on the property owner from the loss of use of the trespassed-upon property that the courts should make an exception to the general rules of property ownership and require the owner to accept damages instead of reclamation of her own land. This focus precludes a more open-ended and free-floating inquiry into which party will make better use of the encroached-upon land, which values it more, and which will derive a greater benefit from its use. It also prevents equitable easements from becoming a means of obtaining an adverse easement without having to satisfy the more onerous requirements of prescriptive easements, including the requirement of five years of adverse use.

(237 Cal. App. 4th at pp. 20-21 (citations omitted).)

An equitable easement may grant the encroacher an exclusive right to use the disputed area. (Hirshfield, 91 Cal. App. 4th at pp. 767-771.)

Although the court has great discretion, the relief granted must not be greater than what is reasonably necessary to protect the encroacher’s use. (See, e.g., Hirshfield, 91 Cal. App. 4th at pp. 771-772 (interest granted to encroachers was nontransferable and terminable if they sold or failed to reside in their house, and encroachers were required to pay as damages the fair market value of the interest received); Christensen v. Tucker (1952) 114 Cal. App. 2d 554 (trial court went too far in granting fee interest to encroacher when easement would have protected encroaching uses).)

In summary, then, the encroacher may have a viable claim for an equitable easement (or, alternatively, a defense to an action seeking to enjoin the encroachments) for permanent improvements where there is sufficient evidence that (1) the encroachments were not willfully or negligently constructed on the adjoining property, and (2) the hardship to the encroacher in removing the encroachments would be greatly disproportionate to any hardship caused to the burdened adjoining property owner.

Most property line and encroachment disputes are resolved through negotiation. We have used mutual easements or mutual licenses to keep the peace. Lot line adjustments are also a solution, one side buys the other out, but they have to be approved by the local building or planning department and they cannot create a non-conforming lot. Set-backs must be maintained if there is a building involved.

If you are buying a property ask the seller or your agent if there have been any recent surveys of the property. Check with the local planning department or the building department to see what they have on file. Surveys may have been done but no construction undertaken because of an encroachment.

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