Legal Question in Real Estate Law in California

My husband bought his home in Northern California in 2000. His property came with an existing fence. A portion of this fence abuts up to the garage of one of his neighbors. It essentially encloses the side space between his and his neighbor's garage. When my husband toured the property before he bought it, he was told the side yard was part of the home’s lot & the neighbor's garage was the property line. The fence was even included in a picture on the home’s sales flyer.

It has now been thirteen years that my husband has undisputedly owned and maintained this side yard and fence. Lately, the neighbor has become extremely pushy about “reclaiming” this space as his even though it was there before my husband even bought the place – our understanding is that it was there before the neighbor bought his house too (which was just a few months before my husband).

He wants us to pay 1/2 for a surveyor to come out or otherwise provide legal proof that its ours. So here are my two questions: 1. Doesn’t the fact that my husband bought it with the understanding it was part of the property; has maintained it; paid taxes on it; owned it undisputed all these years mean the side yard is his? It is totally preposterous to us that the neighbor just expects us to tear down the fence and essentially hand him the side yard b/c he says so. 2. The neighbor is stating now that he will call the City whenever he can to “report” us for anything/everything in retaliation for not tearing down the fence; he has already threatened to call Animal Control about our “dangerous dogs” should we ever bring them over into our back yard. (Our dogs have actually never been over there; he’s never met them, doesn’t know what kind they are - but he plans to call Animal Control to claim they’re dangerous if we ever do). I’m pretty certain the use of City Services to file claims with the sole intent to harass someone is illegal – any advice on how to make this stop.

Asked on 7/20/13, 6:29 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I think having a survey done and splitting the cost is a good first step here. Unless and until both parties know exactly where the legal property line is, there's no real possibility for resolution of this dispute.

Note that payment of property taxes is a prerequisite to claiming ownership of land based upon adverse possession. In California, most taxes are assessed (and therefore, paid) on the basis of legal descriptions of the parcels. Therefore, adverse possession claims between adjoining neighbors are uncommon and generally unsuccessful, unless for some unusual reason, the property tax assessment was made based upon a visual field inspection and the inspector relied upon something (a fence, perhaps) other than a survey in deciding how large a parcel was, and hence, the taxes were not based on the legal description but on the (incorrect) field inspection.

In sum, if this matter were to go to court, the judge would probably leave the property line right where a survey and the legal description set it. Note that there is also the concept of an easement by prescription, which your husband might be able to claim if he were using the disputed area for access, etc., which could perhaps be explored, but the result of a suit to establish a prescriptive easement doesn't change ownership, it merely permits continued use for the traditional purposes.

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Answered on 7/21/13, 12:33 pm

Anthony Roach Law Office of Anthony A. Roach

I doubt that he has actually paid taxes on the neighbor's parcel for the reasons set forth by Mr. Whipple.

Personally, I think a good survey is cheaper than a lawsuit for adverse possession. If the survey turns out that the property lines are where your husband and you think that they are, your neighbor has no legal grounds to stand upon, and any future litigation would be much easier from your position.

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Answered on 7/22/13, 4:51 pm

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