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  1. #1
    Join Date
    Oct 2006
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    14

    Default Can "trespassing" of fence become prescriptive easement?

    From California: If part of my fence is 4" over the property line, thereby trespassing or encroaching on my neighbor's property, is this a good instance of Prescriptive Easement since the fence and the neighbor have been there for 10 years?

    Getting confused with how to define trespassing vs. encroaching....can a fence "trespass?" Also, if the neighbor knew of the encroachment or trespassing 3 years ago, is there a statute of limitations for sueing in California?

    Thanks for any clarification and answer to my questions.
    Skratz

  2. #2
    Join Date
    Jul 2006
    Location
    Northern California
    Posts
    252

    Default Re: Can "trespassing" of fence become prescriptive easement?

    Quote Quoting skratz
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    From California: If part of my fence is 4" over the property line, thereby trespassing or encroaching on my neighbor's property, is this a good instance of Prescriptive Easement since the fence and the neighbor have been there for 10 years?

    Getting confused with how to define trespassing vs. encroaching....can a fence "trespass?" Also, if the neighbor knew of the encroachment or trespassing 3 years ago, is there a statute of limitations for sueing in California?

    Thanks for any clarification and answer to my questions.
    Skratz
    A "prescriptive easement" arises in much the same way that one may acquire title to property by adverse possession: A party claiming a "prescriptive easement" must prove use of the land of another, which use has been (a) "open and notorious," (b) "hostile to the true owner," (c) under claim of right, and (d) continuous and uninterrupted for five years. However, unlike adverse possession, a prescriptive easement does not require the payment of property taxes. This is because a prescriptive easement is not an ownership right.

    By the same token, once a prescriptive easement is created, the claimant's use "continues as a matter of legal right" and it is irrelevant whether the owner of the servient estate purports to grant permission.

    Prescriptive easements may be exclusive or nonexclusive. An exclusive prescriptive easement completely prohibits the owner of the burdened parcel from using it. An exclusive prescriptive easement will not be found in a case involving a "garden-variety" residential boundary encroachment, such as when a structure and/or landscaping merely encroaches on adjacent property. Instead, an "equitable encroachment right" may be fashioned to create an interest in the owner's property that will protect the encroacher's use of the property.

    Your problem, however, is not only proving the existence of such prescriptive easement and its length of time, but whether this is more than a mere "garden variety" boundary encroachment.

    Based solely upon your post, it would appear that you only have a fence over the line, and that it would be cheaper for you to move the fence, rather than pay for expensive litigation.

    Good luck.

  3. #3
    Join Date
    Oct 2006
    Posts
    14

    Default Re: Can "trespassing" of fence become prescriptive easement?

    From your posting, I'm guessing that I would have to go to Court to get a Prescriptive Easement which would require a lawyer, etc., etc.; that one doesn't have a Prescriptive Easement just by meeting all the qualifications as required in California.

    The neighbor had liked my fence and draping landscaping until she knew we had other problems. What actions can she take if I don't move the fence by the date she gave?

    Thanks for your prior response, Claire.
    Skratz

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