Legal Question in Real Estate Law in California
Just what he asked for...
My neighbor insisted I get a survey of my property because he felt some of the property on my side of the fence could be his. He wrote me several letters insisting we get a survey and then put up a 5-6 ft fence on the proper boundry line. After finally giving in to his relentless letters and phone calls, we did. We found out that we own additional property on his side of the fence up to 10 ft on one side! There are two trees which we mutually own right on the boundry line. Do we have the legal right to cut them down and put up the fence he requested right on the boundry line? We would love to cut them because they are ruining our pool.
2 Answers from Attorneys
Re: Just what he asked for...
Well the issue is, how long has he been using your property? If he has been on it for 5 years, then he may have a prescriptive easement and you can't take it back. Otherwise, you should hire me and we should push him off and erect a fence on the line. If he has been on your land for more than 5 years, I would not point this out and only point to the survey and ask him to get off and put the fence on the line -- if he agrees based on the survey, you have your land back. As to the trees, are they on your land on your side of the fence? If so, you can cut them. If they are on your land on his side of the fence, then the above analysis applies and he needs to relinquish the land, if he has been on it for more than 5 years. Now, in the event he has been on your land less than 5 years, and won't get off, you will need me.
Re: Just what he asked for...
You raise two questions.
1. The fence. You can likely erect a fence on the boundary line. However, your neighbor will likely complain, and to the extent that his existing fence must be moved (or destroyed), he may make a damage claim against you. Technically, you must sue to remove his existing fence (as a trespass).
2. The trees. If they are your trees, you can do most anything you want with them. If they are your neighbors, then you cannot harm them, including the roots, unless the roots are causing damage to your property (which in this case, it sounds as if they are). To the extent that they are causing damage, they can be cut. But again, you are better off seeking a judicial determination that this is appropriate.
Good luck.
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