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  1. #1
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    Default How to Make Sure a Neighbor Doesn't Have a Valid Prescriptive Easement to Build Fence

    My question involves real estate located in the State of: California (Southern California)

    I've been living in my residence for about 2.5 years in North Hollywood, CA. I have a backyard and there's a wall there currently at the edge of the backyard to lean on and enjoy the view. Below that wall, there's an additonal 15 ft more that belongs to my property (as confirmed via a survey) which slopes downhill and blends into my neighbor's backyard (no physical barrier). The neighbor is below us, such that if you lean on the current wall to enjoy the view, you can look down entirely onto their yard. In this 15ft of space, there are tall trees and bushes that used to be shorter when we first bought the house, but now they have grown uncontrollably and are blocking our view. The first time our gardner tried to trim these bushes, the neighbor came out and started yelling and cursing at him, and threw a rock over the wall into my backyard to scare him. Another time, an object of ours flew over the wall into their yard (but still within that 15ft space, so technically it was still our land), and they destroyed it and tossed it back. Both instances I called the cops, but unfortunately since I had no actual evidence, they only filed one property damage report. So I had a surveyor come out and he put the markings, and then later I found out the neighbor removed one of them entirely and tried to damage the other! Therefore, I put up a whole surveillance system around my house to point down and record any other monkey business they attempt. Recently, being more confident where my land border lies, I brought some tree guys to cut a few of the big trees. They got through most of them, but were interrupted when the neighbor called cops and told them we are cutting "their" trees that they had planted for over 15 years and watered. I told the cop we knew it was our land and that we were in the right. I (and the cops) weren't sure how to react, so I took the cops' recommendation to stop cutting the trees until we figured this out. I spoke with a couple real estate attorneys and they both recommended I prop up a fence right away to keep my border defined, but then to play it by ear and see how they react. But it's kind of stressful acting in a way that is likely to get sued or in legal trouble, so I want to know how I could cover my bases.
    1) How can I know if they already have a prescriptive easement? My title report only shows some public city easements, and I checked the court house and public records in Van Nuys and saw nothing (or perhaps I missed it)? Could somebody point me to a proper place I could check to know for sure?
    2) Is it wise for me to put up one of those "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code." signs in that 15ft space to prevent a prescriptive easement from forming? Also, if I do start using the land now, is that also good grounds for me to prevent losing it? If so, what are some valid uses--maybe I could plant some stuff there?
    3) They never even "use" or walk around or anything on this unusable, sloped 15ft, anyway, so if they just say they planted those trees for privacy and watered them, I could say I planted some and watered them from behind the wall, too. How can they prove they've been using it, and do they need a more valid use than simply having planted trees that they used for privacy?
    4) How can I get a full history of my property taxes to make sure they can't claim adverse possession if they've ever contributed to it?

    FYI we have CC&Rs in our area and there is one section that says neighbors all agree to maintain their trees in a way that nobody's view is obstructed, but I'd like to refer to that as a last resort as I'm more interested in cutting down the trees and putting up a fence to prevent them from walking up and posing a threat to my family via object throwing.

    I've heard it's gotten tougher in CA to claim prescriptive easement? I hope that's true.

    Any help or advice is infinitely appreciated. Thanks in advance!

  2. #2
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    Default Re: How to Make Sure a Neighbor Doesn't Have a Valid Prescriptive Easement to Build F

    Quote Quoting aj_waterman
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    1) How can I know if they already have a prescriptive easement? My title report only shows some public city easements, and I checked the court house and public records in Van Nuys and saw nothing (or perhaps I missed it)? Could somebody point me to a proper place I could check to know for sure?!
    Your neighbor can claim that he has established the elements necessary for a prescriptive easement but until he files a court action to quiet title and the court rules that he has the easement, he has nothing. So if you can't find any records of a lawsuit or a recorded easement, he doesn't have one.


    Quote Quoting aj_waterman
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    2) Is it wise for me to put up one of those "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code." signs in that 15ft space to prevent a prescriptive easement from forming? Also, if I do start using the land now, is that also good grounds for me to prevent losing it? If so, what are some valid uses--maybe I could plant some stuff there?!
    You could of course place the signs but I would opt to fence the property as the attorneys advised you to do. Your neighbor might at that point file suit to quiet title. It's your land so use it as you want as long as it doesn't violate any zoning laws or your CC&Rs.


    Quote Quoting aj_waterman
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    3) They never even "use" or walk around or anything on this unusable, sloped 15ft, anyway, so if they just say they planted those trees for privacy and watered them, I could say I planted some and watered them from behind the wall, too. How can they prove they've been using it, and do they need a more valid use than simply having planted trees that they used for privacy?!
    Planting of ornamental trees and shrubs and maintaining them does not usually rise to the level of the elements of a prescriptive ease. But that is for the court to decide

    Quote Quoting aj_waterman
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    4) How can I get a full history of my property taxes to make sure they can't claim adverse possession if they've ever contributed to it?!
    You go to your county tax jurisdiction and see what payments were made. It would be highly unlikely that the neighbor made any tax payments for our property. That part of the CA code deals more with squatters where property is not occupied by the owner.

    And BTW, removing a survey monument is a crime.

    California Code, Penal Code - PEN 605
    Every person who either:
    1. Maliciously removes any monument erected for the purpose of designating any point in the boundary of any lot or tract of land, or a place where a subaqueous telegraph cable lies;  or,

    2. Maliciously defaces or alters the marks upon any such monument;  or,
    3. Maliciously cuts down or removes any tree upon which any such marks have been made for such purpose, with intent to destroy such marks;

    --Is guilty of a misdemeanor.
    California Code, Penal Code - PEN 605
    https://codes.findlaw.com/ca/penal-c...-sect-605.html

  3. #3
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    Default Re: How to Make Sure a Neighbor Doesn't Have a Valid Prescriptive Easement to Build F

    Thank you very much for responding, appreciate it greatly.

    My goal is to pretty much have something solid in my possession (some sort of legal proof aside from the actual survey) that in the event the neighbor complains or call the cops or threatens the fence guy if he continues building the fence, I could show the proof to the cops and to the fence guy and say don't worry, I got this, you have nothing to worry about. Is there some powerful document like that which you would recommend I obtain that I could have in my possession to be on the offensive, as opposed to just propping the fence and then sitting and waiting on the neighbor to take the first legal action?

    Some other follow up questions:
    1) Do you think it's a good idea if I file to get an injunction from a judge for me to put up that fence, claiming that it's for the safety of my family given the violent past history I have documented of the neighbor (property damage, object throwing over, survey monument removal, etc.)? If so, do you know how much it would cost me approximately and how much time it would take in California to do so? And would I need to file a lawsuit for this?
    2) I'm a bit confused about the "quiet title action." Is that something I could/should do to prevent claims of prescriptive easements, or is that something the prescriptive easement claimer would need to do, or is that something that I would do, but only once the neighbor first makes a prescriptive easement claim?
    3) Is it hard for me to prove that the neighbor (him or his wife) is the one who removed the survey monument? I don't have actual proof of that on videotape, but I would think it's obvious as nobody else has access to it (i.e. no other neighbor or general public). Also, I could get the surveyor to come back a second time and he will see his placed monument is no longer there and could give me a written testimony that he had to come a second time to replace it.
    4) By the way, the neighbor rarely, if ever, even uses that potential prescriptive easement land since it's on a slope. I do have cameras recording that area. Would that footage suffice as proof that they are not using the area, and certainly not continuously? If not, any other tips to capture his lack of use other than having planted trees on it years ago?
    5) After the fence, I would really like to take this neighbor to court to get my damage costs back (damaged property and additional surveyor cost for when I get the monument replaced). Would that be a separate small claims court issue unrelated to any of the fence stuff, or would it be wise to combine them all together (if so, how exactly)?

  4. #4
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    Default Re: How to Make Sure a Neighbor Doesn't Have a Valid Prescriptive Easement to Build F

    Quote Quoting aj_waterman
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    Is there some powerful document like that which you would recommend I obtain that I could have in my possession to be on the offensive, as opposed to just propping the fence and then sitting and waiting on the neighbor to take the first legal action?)
    There is no more powerful document than your survey and the monuments that show the land is yours at this point. The presumption is that the land belongs to you. If your neighbor wants to rebut that presumption by claiming he has a prescriptive easement to use the property, he would have to prove that to a court. He would have to file suit to quiet title to the use and possession of the land. You would be the defendant and he would be the plaintiff. The burden of proof is on him to show the court that he has gained the right to use the property. You would counter claim for trespass.

    On the other hand, you could sue for trespass and ask the court to order that the neighbor be enjoined from interfering with the use of your land and to stop the trespass. Your neighbor would have to answer the complaint and likely counter claim to quiet title in his favor.

    So it can go either way. You can be proactive and sue or just fence in the property and wait for the neighbor to sue (if he ever does). Those are the possibilities but you should be consulting with an attorney as to what is the best course of action to take. Keep in mind though that these types of lawsuits are expensive and can take months if not years to come to a conclusion.

    Having the surveyor replace the monument is a good idea. Recovery of the cost is something that should be addressed if you find yourself in court as either the plaintiff or defendant.

  5. #5
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    Default Re: How to Make Sure a Neighbor Doesn't Have a Valid Prescriptive Easement to Build F

    Thanks again for your response @budwad, very useful information for me to discuss with my attorney which won't be until another week (very busy attorneys here in LA).

    And yes @SubjacentSupport, as @budwad pointed out it is a violation of California Code, Penal Code - PEN 605.

    A few more things:
    1) If there is currently a city of LA easement there for water drainage, that shouldn't create a problem if I build a fence over it, right? Because it would only prevent the neighbor from accessing it, whereas the city of LA can still access that from my side of the house anytime (though I think they would have to let me know ahead of time instead of just showing up?).
    2) I would like to build the fence within the inside of the true boundary line (about a foot in) for two reasons:
    i) so that I own the fence entirely and the neighbor can't hang stuff on it for "privacy" making it easier for him to try damaging it from behind--meaning, I'd like it to stay see-through so I could easily monitor the well-being of the fence from the other side--and
    ii) so that if my fence guy needs space to work on it from the other side, he will still have some space without the neighbor giving him a hard time about trespassing onto his property
    I am under the impression that that's how fences work, and instead if it were on the true border line, then I would have needed his permission and he would own it partially (which I don't want). Am I correct? Is that how it works or am I wrong? Just want to make sure I'm clear of any California Good Neighbor fence laws.
    3) With regards to the removed survey monument, is there some specific action I could take (such as reporting the incident to a Sheriff)? I told a regular cop about it and he didn't seem to know/care much about it.
    4) Instead of a lawsuit that will be costly and may take a while to resolve, is a preliminary injunction a viable alternative for me to get so that a judge can give me a written blessing saying yes, go ahead and build that fence given you have this survey and it's your property and your neighbors have committed violent acts? Is there such a possible action I could take, and if so, is that a cheaper / faster solution?

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