Jeremiah 1
Junior Member
What is the name of your state (only U.S. law)? California
We live in California and bought our property in 1982 with the front (western) boundary being indicated by a fence. We rebuilt the fence and a retaining wall in 2004. We had no reason to think that the property line would be located anywhere else and surveys were not being done in our, at the time, rural area back in 1982 unless someone was planning to build or remodel. On the other side of the fence is a 25' wide non-exclusive easement used as a roadway for an adjoining property. It runs across the entire front of our property on the other side of our fence. We have used that area behind the fence, considering it as part of our front yard area since 1982.
An existing detached 10' x 12' accessory structure with a 3' setback from our existing fence, which we thought indicated the property line, was rebuilt over a period of time in 2004 - 2006 and presently exists in that area. The rebuilding of the accessory structure and fence w/retaining wall had costs of over $20,000 in materials.
All went well until April of 2013. It was at this point that we became aware, as a result of a survey done by the owner of the property on our western side, who lives on the other side of the aforementioned driveway and owns the easement property, that our fence and about half of the structure, are on a portion of his property, the 25' easement portion. (We also have dominant tenement usage of this easement).
The "over the line" area is basically a slice of property 87' long running behind our fence, across the front of our property, on what we long considered and used as our property. At one end we are about 5' over his property line and at the other end of the 87' about 10' over the line. Unfortunately we have no reason to doubt the survey results, having done some of our own follow up measurements.
The property owner has asked us to remove our fence and structure. If it was just the fence we would probably just do so, but having the structure involved creates a costly problem. He initially offered us a lot line revision adjustment but has changed his mind and will now be suing us for encroaching on his property.
The property owner bought his property in 1996. All work that we did or had done to upgrade the fence/retaining wall and structure in that area that now appears over the property line was done in open daylight and was always available for him to see. Our front yard is easily accessible via a fence opening, gate, and/or from our driveway as it is not fenced in. At anytime since 1996 when he bought his property, he could have let us know if he thought we were on his property.
It would be a very great hardship to us to have to move or dismantle these entities. In addition to the original costs to build, it would cost thousands of dollars more to dismantle or try and move them. Then there would be rebuilding costs.
The location of our fence and structure does not, never has, and never will have an impact on how the property owner or a future owner can use the livable/useable space of his property. It did not affect him when he bought his property or anytime since, nor did it affect previous owners of his property. There is no reason why it should affect a future owner. He has not suffered injury or been damaged in any way.
The area in question behind the fence and part of the structure is located on the 25' easement portion of his property, an existing easement that is non-exclusive and is designated only for use only as a roadway, pedestrian & animal traffic, or utilities etc. The easement area of his property is not livable/habitable space. The driveway on it is 10' wide.
We are looking to the possibility that our use of the area in question over a period of more then 30 years, has created and/or may have established grounds for what is called a "prescriptive easement" and/or an "equitable easement", a prescriptive easement being an easement that is earned by regular use -- it is not something that is purchased, negotiated, or granted. As we understand it, a prescriptive easement is simply a right to use property, the user does not gain title to the land.
Another possibility that exists, and for which we think we may have established grounds, would be an "equitable easement". If this issue goes all the way to court and If a court did not accept our claim to a prescriptive easement, we think that due to the investment we have made in the fence/retaining wall and structure and the fact that our presence there affects the other property owner in no negative way, and hasn't for the past 19 years, that we would have a good chance of obtaining an equitable easement based on the doctrine of “balancing conveniences” or “relative hardship.” An equitable type of easement is also not a claim to the ownership of the area/land in question but is a claim to the use thereof.
Among the reasons leading us to believe that we may have established grounds for a prescriptive easement are the following requirements from California law, for same:
The elements involved to claim a prescriptive easement are:
• Open and notorious
• Continuous and uninterrupted use for the statutory period of time (California
5 Years)
• Hostile to the true owner (Adverse)
• Under a claim of right
• An “Action to Quiet Title” court action can be filed to “perfect” the
prescriptive right
• Let’s boil each item down one at a time.
** Open and notorious: visible to the real property owner with no special knowledge
needed to recognize the presence of a claimant. i.e., a roadway, driveway, utility
pole, fence, etc.
** Continuous and uninterrupted use for the statutory time: the claimant must occupy
the land for the statutory time; (California 5 years) with no interruptions of the time
required.
** Hostile to the true owner: (Adverse) If the fee owner of the land attempts to eject
the claimant and fails then that is truly hostile.
** Under a claim of right: the claimant is attempting to exercise a right in the form of
an easement.
** Action to Quiet Title: this action occurs when the claimant has fulfilled the
previous four items and the court finds in favor of the claimant. The court
essentially grants the prescriptive easement.
" --once a trespasser has met all the requirements to establish a prescriptive easement, the prescriptive easement automatically attaches to the property. The trespasser may, but is not required, to bring a lawsuit to perfect his or her claim of a prescriptive easement. Instead, it is the owner, not the trespasser, who must file a legal action within five years after the adverse possession by the trespasser commences, in order to claim the property back from the trespasser. If the owner waits longer than five years, he or she loses the right to "claim back" their property and the property is thereafter burdened by the prescriptive easement." The California Court of Appeal, Fourth District, in Connelly v. Trabue (2012) 204 Cal. App. 4th 1154
Among the reasons leading us to believe that we might also qualify for an equitable easement are the following requirements for same:
Equitable easements are decided on the doctrine of “balancing conveniences” or “relative hardship.”*This doctrine allows a court to balance whether the granting of an equitable easement would cause more hardship on the title owner of the property, than the hardship that would be caused by denying the encroacher use of the equitable easement.
"- - courts may nevertheless use their equitable power to deny an injunction sought by a plaintiff property owner to remove a defendant neighbor’s unlawful encroachment." Under the doctrine known alternatively as “relative hardship,” “balancing of equities,” “balancing conveniences,” “relative hardship” or “comparative injury,” the court may essentially create an exclusive equitable easement in favor of the defendant. To do so, a court should consider the following four factors:
1. The defendant encroacher must be innocent, and not willful.*To be willful, the encroaching party must not only*know that he is building on the plaintiff's land, but act without a good faith belief that he has a right to do so.*
2. The plaintiff’s injury caused by the encroachment must be less than irreparable.*
3. The cost to defendant of removing the encroachment must be greatly disproportionate to plaintiff’s hardship caused by
the continuance of the encroachment. *
4. In fashioning an equitable easement and the related remedies the trial court has great flexibility. In short, a court using its equitable powers could allow an exclusive easement over a neighbor’s property that is otherwise prohibited under the doctrines of adverse possession and prescriptive easements.
As it stands per our understanding of the situation at the moment, we feel that we may have a legitimate legal right to continue using the area that we have used for the last 33 years. We feel that we may have fulfilled the requirements for a prescriptive easement and/or an equitable easement should this issue go all the way to Court. We informed the property owner of our reasoning and he just turned it over to an attorney to take legal action against us. We expect to be served with the Complaint any day.
To the folks who know much more about these things then we do, what do you think our chances are of getting some sort of easement rights to our area in question? Any info or informed opinion will be appreciated.
--- Jeremiah
We live in California and bought our property in 1982 with the front (western) boundary being indicated by a fence. We rebuilt the fence and a retaining wall in 2004. We had no reason to think that the property line would be located anywhere else and surveys were not being done in our, at the time, rural area back in 1982 unless someone was planning to build or remodel. On the other side of the fence is a 25' wide non-exclusive easement used as a roadway for an adjoining property. It runs across the entire front of our property on the other side of our fence. We have used that area behind the fence, considering it as part of our front yard area since 1982.
An existing detached 10' x 12' accessory structure with a 3' setback from our existing fence, which we thought indicated the property line, was rebuilt over a period of time in 2004 - 2006 and presently exists in that area. The rebuilding of the accessory structure and fence w/retaining wall had costs of over $20,000 in materials.
All went well until April of 2013. It was at this point that we became aware, as a result of a survey done by the owner of the property on our western side, who lives on the other side of the aforementioned driveway and owns the easement property, that our fence and about half of the structure, are on a portion of his property, the 25' easement portion. (We also have dominant tenement usage of this easement).
The "over the line" area is basically a slice of property 87' long running behind our fence, across the front of our property, on what we long considered and used as our property. At one end we are about 5' over his property line and at the other end of the 87' about 10' over the line. Unfortunately we have no reason to doubt the survey results, having done some of our own follow up measurements.
The property owner has asked us to remove our fence and structure. If it was just the fence we would probably just do so, but having the structure involved creates a costly problem. He initially offered us a lot line revision adjustment but has changed his mind and will now be suing us for encroaching on his property.
The property owner bought his property in 1996. All work that we did or had done to upgrade the fence/retaining wall and structure in that area that now appears over the property line was done in open daylight and was always available for him to see. Our front yard is easily accessible via a fence opening, gate, and/or from our driveway as it is not fenced in. At anytime since 1996 when he bought his property, he could have let us know if he thought we were on his property.
It would be a very great hardship to us to have to move or dismantle these entities. In addition to the original costs to build, it would cost thousands of dollars more to dismantle or try and move them. Then there would be rebuilding costs.
The location of our fence and structure does not, never has, and never will have an impact on how the property owner or a future owner can use the livable/useable space of his property. It did not affect him when he bought his property or anytime since, nor did it affect previous owners of his property. There is no reason why it should affect a future owner. He has not suffered injury or been damaged in any way.
The area in question behind the fence and part of the structure is located on the 25' easement portion of his property, an existing easement that is non-exclusive and is designated only for use only as a roadway, pedestrian & animal traffic, or utilities etc. The easement area of his property is not livable/habitable space. The driveway on it is 10' wide.
We are looking to the possibility that our use of the area in question over a period of more then 30 years, has created and/or may have established grounds for what is called a "prescriptive easement" and/or an "equitable easement", a prescriptive easement being an easement that is earned by regular use -- it is not something that is purchased, negotiated, or granted. As we understand it, a prescriptive easement is simply a right to use property, the user does not gain title to the land.
Another possibility that exists, and for which we think we may have established grounds, would be an "equitable easement". If this issue goes all the way to court and If a court did not accept our claim to a prescriptive easement, we think that due to the investment we have made in the fence/retaining wall and structure and the fact that our presence there affects the other property owner in no negative way, and hasn't for the past 19 years, that we would have a good chance of obtaining an equitable easement based on the doctrine of “balancing conveniences” or “relative hardship.” An equitable type of easement is also not a claim to the ownership of the area/land in question but is a claim to the use thereof.
Among the reasons leading us to believe that we may have established grounds for a prescriptive easement are the following requirements from California law, for same:
The elements involved to claim a prescriptive easement are:
• Open and notorious
• Continuous and uninterrupted use for the statutory period of time (California
5 Years)
• Hostile to the true owner (Adverse)
• Under a claim of right
• An “Action to Quiet Title” court action can be filed to “perfect” the
prescriptive right
• Let’s boil each item down one at a time.
** Open and notorious: visible to the real property owner with no special knowledge
needed to recognize the presence of a claimant. i.e., a roadway, driveway, utility
pole, fence, etc.
** Continuous and uninterrupted use for the statutory time: the claimant must occupy
the land for the statutory time; (California 5 years) with no interruptions of the time
required.
** Hostile to the true owner: (Adverse) If the fee owner of the land attempts to eject
the claimant and fails then that is truly hostile.
** Under a claim of right: the claimant is attempting to exercise a right in the form of
an easement.
** Action to Quiet Title: this action occurs when the claimant has fulfilled the
previous four items and the court finds in favor of the claimant. The court
essentially grants the prescriptive easement.
" --once a trespasser has met all the requirements to establish a prescriptive easement, the prescriptive easement automatically attaches to the property. The trespasser may, but is not required, to bring a lawsuit to perfect his or her claim of a prescriptive easement. Instead, it is the owner, not the trespasser, who must file a legal action within five years after the adverse possession by the trespasser commences, in order to claim the property back from the trespasser. If the owner waits longer than five years, he or she loses the right to "claim back" their property and the property is thereafter burdened by the prescriptive easement." The California Court of Appeal, Fourth District, in Connelly v. Trabue (2012) 204 Cal. App. 4th 1154
Among the reasons leading us to believe that we might also qualify for an equitable easement are the following requirements for same:
Equitable easements are decided on the doctrine of “balancing conveniences” or “relative hardship.”*This doctrine allows a court to balance whether the granting of an equitable easement would cause more hardship on the title owner of the property, than the hardship that would be caused by denying the encroacher use of the equitable easement.
"- - courts may nevertheless use their equitable power to deny an injunction sought by a plaintiff property owner to remove a defendant neighbor’s unlawful encroachment." Under the doctrine known alternatively as “relative hardship,” “balancing of equities,” “balancing conveniences,” “relative hardship” or “comparative injury,” the court may essentially create an exclusive equitable easement in favor of the defendant. To do so, a court should consider the following four factors:
1. The defendant encroacher must be innocent, and not willful.*To be willful, the encroaching party must not only*know that he is building on the plaintiff's land, but act without a good faith belief that he has a right to do so.*
2. The plaintiff’s injury caused by the encroachment must be less than irreparable.*
3. The cost to defendant of removing the encroachment must be greatly disproportionate to plaintiff’s hardship caused by
the continuance of the encroachment. *
4. In fashioning an equitable easement and the related remedies the trial court has great flexibility. In short, a court using its equitable powers could allow an exclusive easement over a neighbor’s property that is otherwise prohibited under the doctrines of adverse possession and prescriptive easements.
As it stands per our understanding of the situation at the moment, we feel that we may have a legitimate legal right to continue using the area that we have used for the last 33 years. We feel that we may have fulfilled the requirements for a prescriptive easement and/or an equitable easement should this issue go all the way to Court. We informed the property owner of our reasoning and he just turned it over to an attorney to take legal action against us. We expect to be served with the Complaint any day.
To the folks who know much more about these things then we do, what do you think our chances are of getting some sort of easement rights to our area in question? Any info or informed opinion will be appreciated.
--- Jeremiah