What is a Property Line Encroachment?
When referring to a real estate encroachment, encroachment into a property line generally means that something from one property has crossed over the boundary and is on the other property. In California, what usually happens is that one neighbor has planted a tree or shrub too far over onto the neighbor’s land, or has allowed plants or vegetation to grow over the property line into the adjacent property, or one has constructed a fence or wall along the property line, and a small part of that fence or wall is on the other side of the property line.
It is not rare to find cases where one party builds a wall that it believes is on its property and another party discovers that part of that wall is actually on his or her property. Also not rare is when one party allows something to grow onto the adjacent property. A common example is when a neighbor plants a grape vine , and allows it to grow without cutting it back periodically, and the vine begins invading a neighbor’s yard. These issues can be somewhat troublesome for homeowners who confront them because they are not sure whether the encroachment should be, and can be, legally remedied.
If you think that a neighbor has encroached into your property, you can have your neighbor remove the encroachment. If the neighbor refuses to do so, you may be able to sue the neighbor in civil court to remove the encroachment. Or, if the encroachment is preventing you from selling your home, you may be able to sue in civil court to force the neighbor to remove the encroachment.
California Property Line Encroachment Laws
Property line encroachments are governed by several statutes and judicial interpretations in California, making for a complex field of law. Generally, there are two types of property line encroachments: encroachments by a structure, and encroachments by vegetation. An encroachment by a structure is more likely to require the attention of counsel because an encroachment by vegetation often can be resolved via self-help. Here, we will first discuss the law that applies to an encroachment by a structure.
California has a broad statutory scheme that spells out detailed regulations that apply to the various sorts of encroachments. The statutes that apply to structures include section 841 of the Civil Code, the so-called "Encroachments Act" (included within Chapter 8, Article 2 of the Civil Code); section 830 of the Civil Code, which addresses use of land for private roads; common law dictates that go back to the middle of the 19th century; and statutes concerning adverse possession.
If a neighbor builds or plants a structure over the property line onto your land, but the encroachment wasn’t the result of bad faith (mere negligence doesn’t count), you can do one of a couple of things. First, you could sit back and do nothing, and the statute of limitations will run in five years. Second, you could bring a civil action to force the removal of the encroaching structure. Third, you can decide to "prescribe" the right to be encroached upon, which involves using the encroaching item for yourself without compensation, and without notice to the owner of the encroachor, for five years—that’s right, even if there was bad faith on the part of the encroachor in the first place, you can make the encroacher’s bad faith moot by prescribing away the owner’s right to remove the encroaching item by asserting to the encroacher that the encroacher is permitted to encroach, and using the encroaching item for your own benefit for five years.
Should the encroaching structure cause damage to your land, you’re entitled to the cost of repair or restoration. If the encroacher built the encroaching structure in bad faith, the encroacher could be responsible for the diminution in the value of the property. Should the encroacher be in bad faith in building the encroaching structure, you could have the right to remove the encroaching structure, although if you remove the encroaching structure, you would have no remedy for any loss or damage caused by doing so.
Encroachment by vegetation is a slightly less complicated matter under California law, as encroaching vegetation isn’t considered to be as permanent a feature of the real property. California gives the encroacher a short period of time to trim or remove the encroaching vegetation and, if in bad faith, can be liable for damages caused by any lost trees or loss of value to the property. Although this sounds simple and efficient, there are a few qualifications.
Should the encroaching vegetation be a fruit tree encroaching over a neighbor’s property line, the homeowner might be able to disclose his or her right to take the fruit from the encroaching branches, in addition to the right to trim the offending branches back to the property line. However, any providing of additional use rights to the encroacher should be made with caution.
Resolving a Property Line Dispute
In California, most property line disputes are solved through negotiation between the two parties or their representatives. The California Association of Realtors advises that buyers and sellers should be aware of any property line issues and possible encroachments. They advise that the seller should identify and disclose any known issues with the property lines and any encroachments on or from the property. But the failure to reveal any issues relating to property lines does not give any buyer an automatic reason to back out of the purchase or to sue the seller. Once the error is revealed, it is often considered a mutual mistake which both parties will want to amicably resolve. If efforts to resolve the issue result in an impasse, litigation might be required to establish the true property boundaries. In extremis, the court can even order a survey or appoint a surveyor to map the land. A property survey is useful in all cases because it establishes the true property lines in a clear and comprehensive manner. The most commonly used survey methods are the method of least squares and tribunal method. Land surveys should not be confused with boundary surveys which are a simple version that include only the corner points.
Consequences for Ignoring an Encroachment
A registered property owner who ignores an encroaching fence — or tree back from a 2007 California Court decision — will not have to worry about a lawsuit for damages after 5 years from the date of the creation of the enclroachment. This is because the Act of 2002 (SB 1453, Chapter 575, Statutes of 2002, codified in Cal. Code Civ. Proc. § 883.110), at California Civil Code sections 883.010-883.020, and now California Property Code § 841.4(a) limits the liability of property owners who continue to allow encroachments on their property for more than 5 years from the date of the encroachment.
These laws create an exception to the general rule of law that a party who maintains a trespassing fence beyond the statutory period can be sued for damages or for ejectment. In summary, the burden is on encroaching party to file a lawsuit within 30 days of written demand for the removal of the encroaching item, and if they don’t, the following sections of the law apply:
SUBDIVISION ONE: THE LAW
(1) Manner of Acquiring Right: Section 883.110 – California Civil Code
a. A person shall acquire no prescriptive right or title as against the true owner of the land upon which a fence is constructed which encroaches upon the land of another by virtue of an open and notorious use for five years or more. Such a right shall not be acquired unless the fence encroaching upon the land of another has been placed there by permission of the true owner given in writing or proven by clear and convincing evidence. Five years of continuous use is necessary to establish permission to maintain an encroachment.
b. If the fence is wilfully and intentionally erected, erected under color of right, or through mistake, the encroaching owner shall be responsible for all damages to any of the true owner’s properties proximately caused by the encroachment, except that if the encroachment was erected and maintained by a prior owner and it encroached for five years or more before the date of acquisition, the current owner shall be relieved from responsibility for the damages .
(2) Waiver of Possible Damages: Section 883.115 – California Civil Code
a. A person who has the right to the possession of land upon which a fence is encroaching may, at anytime within two years after knowledge of the fence encroachment, a. "Determine whether the value of such property will be materially injured by the continuing encroachment." (Secs. 883.115(a)) and b. "Serve a written demand…upon the owners of the adjacent encroaching property that…the owners of the encroaching property remove the encroachment and…discontinue…the use of the encroaching property…at the expiration of 60 days thereafter…." (Sec. 883.115(b))
b. If after the expiry of the 60-day period, if the encroaching property is not removed, then the owner of the adjacent encroaching property a. "Shall be liable for any damages…." b. "Be precluded from recovering any damages…." c. "Shall be liable for any damages arising out of or incurred in connection with any future actions or trespasses by the owners…."
(3) Presumtion of Property Line Fence: Section 841.4(a) – California Property Code
When there is an existing fence between two adjoining lots, if one of the owners wants to build a new fence and the old one is inside the property line then the owner who desires to build the new fence has a responsibility to "serve notice on the owner of the adjoining lot of its intention to construct the new fence at a point set back on the property line at least 4 inches from the existing fence, unless the existing fence is on the property line." Failure to give "notice… precludes the owner of the adjacent lot from recovering any damages… for any consequential damages to crops…" … The owner who builds a new fence after the old fence is removed, if the old fence was outside the property line, is "responsible for any damages… [caused by] the new fence that was not incurred before the date…."
Preventing Encroachment
While any property owner is at risk for an encroachment claim, there are some simple preventative measures property owners can take to reduce this risk. One such preventative measure is knowing exactly where your property line lies, and considers having the lot surveyed, especially if the property is being purchased. Encroachments may sometimes be alleged long after a home is purchased or sold. To reduce the risk of an action over an existing, unknown encroachment, use the following do it yourself methods: Property owners should be careful to avoid clearing property in a way that would mistakenly assert ownership over the adjoining yard. Where possible, purchase only property that has been marked in accordance with subdivision (a) of Code of Civil Procedure section 872. If the lot is not marked, it is a good idea to do so once you acquire the property, so that just by looking around the perimeter you obtain constructive notice that there is boundary line you should be wary of. All property owners should maintain open communication with the property owners adjacent to their borders. Where a neighbor appears to be encroaching, simply ask them to address the issue. In all but the most extreme cases, this will likely stop the encroachment.
Seeking Legal Assistance with Property Encroachment
Although we have discussed in detail how to solve legal issues involving property line encroachments, folks commonly want to hire an expert or an attorney to help resolve the boundary issue. Even if you are able to come to an agreement with a neighbor, you will likely need an attorney to draft a boundary agreement to memorialize your new boundary agreement.
First, look for someone that specializes in boundary disputes. Experience is always the best teacher and boundaries are typically contested areas of law. It will take time for an attorney to understand your dispute , your property, the prior history of your parcel, as well as the surrounding area.
Secondly, in California most attorneys will charge a person for the time involved with discussing or researching a difficult issue. Consider that the cost will likely be higher than expected.
Most importantly, consider carefully hiring someone who specializes in property line disputes. You might be better off having a good expert help you communicate with your neighbor, rather than simply have an attorney send a nasty letter to your neighbor.