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Help, my neighbor claims he owns my land trapped behind our fence!

| Jul 3, 2024 | Firm News

Scenario: you and your neighbor share what you thought was a boundary line fence.  Now you’re building an ADU (accessory dwelling unit), and you had to get a survey for your building permit.  The survey says your fence is actually not on your boundary line.  Rather, you’ve discovered that the shared fence is too far on to your side, and the true property line is somewhere in your neighbor’s bushes.  You tell your neighbor “hey, I’m building an ADU and I need to move the fence back to the real boundary line.”  Unsurprisingly, your neighbor does not agree to or approve of this plan.  They spend 15 minutes on Google or ask ChatGPT, and they gain a firm belief that they have a legal right to keep your land that’s on their side of the fence.  Sound familiar?

This problem is wildly common in California.  Fences are misplaced for a variety of reasons.  Perhaps it was geographically inconvenient to put the fence exactly on the boundary line, perhaps the fence contractor or a previous owner made a mistake, perhaps someone in the past relied on the wrong kind of map (pro-tip: neither Google Maps nor an Assessor’s Parcel Map may be relied on to prove where your property’s boundaries actually are).  Sometimes even earthquakes and/or soil movement in hilly areas can shift a fence a few inches and no one notices – this happens frequently on the southern side of Los Gatos.

There are three claims your neighbor trying to steal your land may make:

  1. That the fence has been there so long that it actually changed the boundary line between the properties.  This is called the “Agreed-Boundary Doctrine.” This doctrine applies if all of these conditions have been provably met: (1) there was uncertainty as to the true boundary; (2) there was an agreement between coterminous owners as to the true boundary; (3) the owners acquiesced to the line so fixed for a period equal to the statute of limitations [15 years]; and (4) the boundary so fixed must be identifiable on the ground.

As it may apply to residential neighbor disputes, the Agreed-Boundary Doctrine is a almost always a “red herring.”  That’s because for the past hundred years and more, residential parcels were almost universally created by drawing and recording subdivision maps, each of which fixed the original property’s boundaries as the lots were subdivided both visually and by survey measurements, so it’s very rare in a residential case to have boundaries be “uncertain” within the meaning of the doctrine.  “Uncertain” does not mean merely a disagreement about survey measurements, and it does not mean “we can’t be bothered to figure it out.”  Rather, “uncertain” means that there must have been some mistake, omission or conflict in the records that can only be resolved either by agreement or by court action.

Further, the party claiming the doctrine has to show there was an agreement to treat the fence as a boundary line, and that the agreement wasn’t challenged for more than 15 years.  There are circumstances under which agreement may be implied from conduct, i.e., not fighting about it, but modern courts are going to need substantial corroborating evidence that the conduct was in fact an implied agreement.

  1. That they own your land trapped behind their fence because of “Adverse Possession.” Adverse possession is a tool for land redistribution intended to promote the use of and improvement of land.  An adverse possessor generally finds abandoned or under-utilized, privately held, land, which the owners have not been paying taxes on, and they move onto it in a very obvious manner, and start paying the taxes.  If they get away with it for five years, they can ask the Court to declare them the new owners of the property.

Formally, the elements of an adverse possession claim are: (1) actual possession by plaintiff of property under claim of right or color of title; (2) possession consists of open and notorious occupation of property in such manner as to constitute reasonable notice to true owner; (3) possession is adverse and hostile to true owner; (4) possession is uninterrupted and continuous for at least five years; and (5) plaintiff has paid all taxes assessed against property during five-year period.

This is almost identical to a prescriptive easement claim (see below), except harder to prove and less likely to win.

  1. That even if they don’t own the land outright, they have developed prescriptive rights to the land and thereby have a “Prescriptive Easement.” Reminder, an “easement” is when one party, called the “dominant estate” has the right to use another party’s land (the “servient estate”). Even though the servient estate owns the land, they cannot do anything with it that would disturb the dominant estate’s established use; the most common example of this kind of arrangement is a shared driveway.  An easement by “prescription,” means that someone very obviously used some portion of someone else’s property for so long without any fuss that they should be allowed to continue using it in the same manner indefinitely.

Formally, a claim for “prescriptive easement” shares the same elements as the adverse possession claim above, except there is no requirement that the claimant have paid any property taxes.  That’s what makes it easier to prove and more likely to win.  Generally, an easement is also a less harsh remedy than outright change of ownership, and the Court does care about relative harshness in cases like this.

Regardless of how it happened, now you’re terrified that your neighbor may be correct, and they do have a right to keep the fence exactly where it is, and they may even own some of your land now.  How can you tell whether they have a legitimate claim to your land or not?

Investigate whether there’s a history of fence disputes.

First, ask your neighbor if they’re aware of any prior easements, agreements, judgments or correspondence about this fence issue, and if so, ask for a copy.

Second, go find the seller’s disclosures you received when you bought the property, and see if the previous owner told you there were any agreements or disputes about the fence.  Good news or bad news, you need to know, and it may help establish a timeline for the dispute.

Third, review your property’s title report.  You may still have it from when you bought the house.  Check and see if there are any recorded documents that shed light on this fence issue.  Perhaps a previous owner recorded an easement in favor of your neighbor, or recorded some other document that grants them some kind of permission to keep the fence where it is – a letter granting permission, a settlement agreement for a dispute, a maintenance agreement, even a court order from a previous action.  Permission to keep the fence where it is may even be found in the legal description of your own deed.  All or any of those might explain why your neighbor thinks they have a right to keep the fence where it is.

Fourth, go purchase a preliminary title report for your neighbor’s house too.  Any of the larger title companies will sell you such a report.  Look for the same documents there – check the legal description on their deed, check for recorded easements, or any other kind of paper that might be about the fence.

If any of steps 1 through 4 result in you finding documents that may legally mean “keep the fence where it is now,” call me.  That’s a wholly separate and more complex analysis than this.  From here on out, we assume there are no documents, and you’re dealing with a case of “I don’t wanna” from your neighbor.

Remember the “Neighborly Accommodation” Defense

For decades, attorneys have beaten their heads against the wall arguing that misplaced boundary line fences are not “hostile” or “adverse” within the meaning of adverse possession/prescriptive easement law.  Those attorneys have been losing for the past 60 years or so, as the Courts more often recognize that fences are, in fact, hostile and adverse structures by their very nature.  But in the case of residential neighbor fence disputes, it is still possible to attack the “claim of right” requirement for adverse possession/prescriptive easement.

The defense is called “Neighborly Accommodation.”  In 1900-1904 there were a flurry of cases revolving around when and how someone could gain rights to their neighbor’s land when their neighbor is right there watching them do it and choosing not to fight about it for the sake of keeping the peace.  For both adverse possession and prescriptive easement claims, the claimant has to be able to show that they had some “claim of right” or “color of title” to the land.  It doesn’t matter if they were mistaken about their rights, or the title, that’s not the point.  Rather, the defense recognizes the very human desire to “get along” even when someone else isn’t being reasonable.

In Clarke v. Clarke (1901) 133 Cal. 667, 670, the Supreme Court of California incidentally created the defense by recognizing that there were some circumstances under which a neighbor might cede rights, without it having to be a permanent, enforceable forfeiture of those rights.  “The question as to whether or not the use was under a claim of right, or a mere matter of neighborly accommodation, was a question of fact to be determined by the court in the light of the relations of the parties, their conduct, the situation of the property, and all the surrounding circumstances.”

Courts began citing to Clark and the other cases surrounding it, as early as 1904 and continuing to the modern era, essentially recognizing that the fundamental human desire to not want to pick a fight with your neighbor that you have to live next to every day about a minor fence issue does not and should not mean you must forfeit your property rights forever to that neighbor in a lawsuit.

What is a “neighborly accommodation?”  It’s essentially granting implied permission to use the land by not doing anything to stop its use.  There is no fixed legal definition, the Court decides on a case-by-case basis, except generally speaking it needs to be between neighbors, and it has to be the kind of thing that would help neighbors get along with each other.  These claims and defenses are all “equitable,” meaning, they are heard by and resolved by the judge alone, not a jury, and the judge is generally required to balance numerous factors in making a decision, all of which boil down to “what outcome would be fairest to both sides?”

Keeping in mind the existence of any of those documents I told you to look for above, if you can sit on the witness stand and honestly tell the judge under oath that you didn’t see the point of fighting with your neighbor over a foot or two of property that may or may not have been behind a fence until just now because you found out you needed that land back to build on, then you very likely have a “neighborly accommodation” defense.

Now that you know there is a problem with the fence line, if you still don’t deal with it, your neighbor could start developing a brand new claim to ownership of your strip of land on their side of the fence.  The absolute easiest, and counterintuitive, way to prevent your neighbor from gaining any new rights is to give them written permission to keep the fence where it is.  Do not agree that the fence should set the boundary line, but rather write “I give you permission to use that strip of my land on your side of our fence until I say otherwise.”  Send it via certified mail with delivery confirmation (or UPS/Fedex with tracking), and record the letter and the delivery receipt against your own property.  By formally giving them permission, you have permanently destroyed their ability to claim their use of your land was “hostile.”  By recording it, you’ve made life much, much easier for any subsequent purchasers/inheritors of either property if they have a future dispute about the same fence.  You can always formally revoke the permission later when you’re ready to actually do something about the fence.  (Record that revocation too).

Hope that helps.

  • Bill