Legal Question in Real Estate Law in California

property line dispute

Recently a vacant lot next to our house sold and we were accused of encroachment (as much as 5 feet). At present we are in the process of surveying the property line. However, as a condition to the sale of the property we have been asked to move the fence and landscaping (includes trees/shrubs that are over 20 years old) that fall in the questionable area.

We put up part of the fence 3-4 years ago. However the prior owner put up most of the fence in the backyard a number of years ago (appx 15-20 years). In addition, we bought the property from a bank that put up another part of the fence (a portion of this fence appears to fall in the area in question).

Do any of the prior owners share liablity?

Are we financially responsible for moving all the items in the questionable area?

Does the new owner bear any of the finacial burden since they will share in the benefit of having a fence?

Asked on 7/16/01, 6:29 pm

1 Answer from Attorneys

Lloyd Kirschbaum Law Offices of Lloyd Kirschbaum

Re: property line dispute

Yours is an interesting question, that will most likely be determined by the results of the survey. It's a little difficult to understand from a verbal description. I can't tell from the facts that you described if there was sufficient "adverse possession" to qualify for what is known as a "prescriptive easement." That would entitle you to continue using the property in a manner consistent with the prior use that you made of it (although you wouldn't actually own it). In order to make that determination, the most important factors will be why the fence was placed where it was, whether that use was with the permission of the owner of the vacant lot, the timing, and whether the use has been continuous. I don't think that any of the prior owners are on the hook. Unless the survey shows that the fence and/or plants are encroaching, and you're the ones who put them there, and you don't meet all of the requirements for a prescriptive easement, I wouldn't move a thing.

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Answered on 7/17/01, 12:29 pm

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