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  1. #1
    Join Date
    Aug 2015
    Posts
    11

    Default Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    My question involves real estate located in the State of: CA
    We've had issues with our neighbor for the past 6 months and are close to resolving it. We have a fence that runs 125 ft between our house and the neighbors. After having the property surveyed, it was brought to our attention that the neighbor owes us 2.8 ft. The first 55 feet of the fence is wood and the neighbor has finally agreed to move their items off our property so that we can replace the wood fence. The remaining 70 feet is chain link and will require them to move a greenhouse (a free standing/shed like structure), some planter boxes, and some landscaping.
    The neighbor originally offered to draw up a boundary agreement and to pay a small sum of money to us as a one time offering for letting them use the land. We declined this offer because the area with the wood fence is space we could utilize for some future home remodeling we have in mind.

    I was thinking of seeing if they were interested in doing a boundary agreement for the 70 feet of space next to the chain link fence since this space is used more by them. I don't mind moving the chain link fence to line up with the new placement of the wood fence but was trying to save them time and money of moving their items in this area. When I brought this up in passing, they didn't seem interested but also keep asking us if we plan to move the chain link fence and how disappointed they would be to lose their greenhouse and matured landscaping. I assume it's better to put an agreement in place instead of doing nothing because without it, can't they claim adverse possession after a certain amount of time? Thoughts?

  2. #2
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    Could you clarify if by "boundary agreement" you mean to give the neighbor permission to continue using the land or do you intend to change the property lot boundary?

    If the agreement is to grant permission without changing the property lot boundary, then that license to use your land can be revoked at any time in the future (subject to the terms of the agreement) and it also stops the clock on any adverse possession.

  3. #3
    Join Date
    Aug 2015
    Posts
    11

    Default Re: Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    Yes, I was thinking of putting a boundary agreement to allow them to continue using the land. My concern is if I don't put one in place they could later claim adverse possession IF we chose to move the fence on the correct property line in the future.

  4. #4
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    395

    Default Re: Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    What you are talking about is giving permission for the existing use, not a boundary agreement which has a very different meaning.

    A Boundary Agreement is a process landowners use when the line between then is uncertain in location, or the location is in dispute. The Boundary Line Agreement is a means of clarifying the position of the uncertain boundary. In CA, the legal threshold for demonstrating uncertainty is pretty high. There are essentially two standards of uncertainty, subjective and objective. Subjective means that the landowners are unsure of the location and for whatever reason, hiring a surveyor to locate it is either not financially feasible or is otherwise impractical. Many years ago, CA courts subscribed to subjective uncertainty.

    Objective uncertainty means that the true location of the boundary cannot be positively located by a competent surveyor. As land values have risen faster than the cost of surveying, and since hiring a surveyor is not as difficult as it was a century or so ago, the CA courts appear to be of the opinion that a boundary is not uncertain until an attempt by a licensed surveyor is made and the surveyor is unable to do so.

    As budwad said, granted permission is revocable and preserves your title from adverse claims as title by adverse possession cannot ripen from a permitted use. If the use is by permission, it is not considered to be adverse. You can do this by sending a certified letter and keeping a copy for yourself along with the delivery receipt. But better yet is if you can file it as a grant of revocable easement on an easement deed, or simply as a notice of permissive use on an affidavit. See a local attorney about the best form to put it in for recording. Recording puts it in the public record so it will show up on a title search.

  5. #5
    Join Date
    Nov 2013
    Posts
    672

    Default Re: Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    When I bought this property, I did some research on my own, and found that at one time, there had been a document filed allowing my neighbor's garage to remain where it had been for years, although it was legally on "my" property. The agreement stated that if the garage was repaired/rebuilt, it would be moved entirely to their property. Today there is no sign of it, and the provision does not appear in my title insurance.

  6. #6
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    395

    Default Re: Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    Catmad,

    Your example is a classic example of the landowners coming together to acknowledge 1) that one's improvement is or may be partially on the land of the other, and 2) a prescriptive right may or likely has ripened, and so formalizing the prescriptive easement as a granted/written easement. An important part of that, as your example demonstrates, is to grant that right only until the encroaching improvement needs to be replaced or repaired, with the provision that any replacement or repair will entail ensuring that the improvement be removed to the land of the person owning the improvement. Once the improvement is removed, the reason for the easement no longer exists and the easement itself ceases to exist. Any new encroaching improvement would require new permission.

    The flip side of that is that if the owner of the encroached upon land does not either grant permission or demand removal, the new encroachment would start the clock ticking on a new adverse claim which could eventually result in another prescriptive easement or transfer of title by adverse possession.

    KJ1993,

    You may want to PM Catmad to see if he or she could give you some more specific info as to how they put their agreement in place.

  7. #7
    Join Date
    Nov 2013
    Posts
    672

    Default Re: Can You Enter Into a Boundary Agreement Instead of Moving a Fence

    eapls2708, it was before I bought the property, but I can look it up and try to post the language here. The county website has recently changed, and I've had little luck adjusting to the changes, but I'll try. It isn't anywhere in "my" paperwork, and there's no longer any sign of the garage. If the former owner hadn't told me the tale, I never would have known. That said, when I did buy and had my boundary survey done, the neighbors asked if they should move their picnic table, which they now understand is on "my" property. They are on 1 acre, surrounded by my 50+. We agreed that the table can stay, and they are welcome to use it as long as they wish. I'll see if I can find the agreement.

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