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  1. #1

    Default Retaining Wall And Prescriptive Easement in California

    We and our adjacent neighbors are in a dispute over a 4 foot high concrete retaining wall that straddles both of our property lines. About 6 years ago, I rebuilt the retaining wall over its original foot print (the original cinder block retaining wall was at least 30 years old and in bad shape and was falling over). I rebuilt it using poured concrete, added proper drainage, gave it rock back fill, etc. My wife then put on a nice rock face on our side of the retaining wall. The other side of the retaining wall is not seen, since the top of the retaining wall is at the same elevation as the neighbors property. (our property sits about 4-5 feet below their property).

    The retaining wall is about 5-6 feet from the side of our house and defines the entryway into our house. Since it is our entryway, we like it to look nice, have some greenery etc. The previous owner of the neighbor's property was a 74 year old widow on fixed income. She was the owner of the house when I rebuilt the retaining wall in 2002 and had no issues with it. She liked the wall and the fact she didn't have to spend a small fortune paying for half of it. We paid for the wall completely. I have all the receipts.

    Over the last 12 years we have "maintained" the wall, before and after it was rebuilt. We’ve had large clay terra-cotta pots sitting on top of retaining wall with lattice in the pots to obscure the neighbors privacy fence, which is few feet back from the retaining wall. Last year (2007), the neighbors (who purchased the property in 2004) had a lot line survey done and discovered (what we already knew), that the retaining wall straddles the property line. Recently, they demanded the removal of the clay pots (which are on their property, according to their survey). They demanded they be removed immediately. They had an officer from the local Police Dept come out and "mediate" the removal of the clay pots.
    We also had a survey done (for a 2nd story addition) in 2004 and obviously our surveys don't agree, but they disagree by a small amount (less than a foot).

    We would like to see this matter is resolved legally once and for all. We don't wish them to suddenly decide to paint over the nice rock face on our side of the wall (the part of the wall they claim is on their property) simply because "it's on their property". We would like to put our clay pots back on the wall and generally put things back the way they have always been. The neighbors have no constructive use for the area on the wall.

    So our questions are:

    1) Because we've lived in the house (for 12 years) and maintained the retaining wall before and after it was rebuilt, and paid entirely for the reconstruction of the wall, does this give us a right to a prescriptive easement or to own the wall completely overriding the neighbor’s survey, which they claim gives them ownership rights?

    2) The previous owner of the property, the Widow, never had any issues with our fixing the wall or planting along the wall, enhancing the visual appeal of the wall, etc.

    3) Would mediation/arbitration be a better, less expensive way to go?

    4) We're just regular working folk, so we can't necessarily afford a huge, expensive and lengthy legal battle.

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,370

    Default Re: California - Retaining Wall And Prescriptive Easement

    Sounds like you have a survey which basically splits the wall and another survey which would place all of the wall on your neighbor's property.

    A discrepancy of "less than a foot" is not small. It is large. That needs to be resolved before any further steps can be taken.

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