Neigbor's 2nd Drivway Encroaching 20ft on Our Property; HELP What are Our Rights?

[jl.828]

What is the name of your state (only U.S. law)? California

We purchased a home 6 months ago in San Diego CA; in the disclosure portion of the paperwork the sellers were asked if there was any encroachment issues with the property! They answered NO, and then after we moved in we had an incident with our neighbor about the property line. The neighbor admitted that his driveway was on our land. We became curious and started measuring everything out. His driveway is actually 20ft on our property; this neighbor does have a second driveway he uses regularly that does not encroach. According to the other neighbors this was a known fact in the neighborhood and has been this way for 15-20 years. We only have a third of an acre so this is a significant portion and we would not have purchased the home if this was disclosed to us. We opened a claim with title and were told there was no agreement of land use or easement on record anywhere in the past, therefore it is a trespass and our claim was denied because there was no threat to title. We contacted the County of San Diego and they verified that there is ‘No easement or Agreement’ on file, and No ‘Application to Obtain Permission of use of land’ has ever been filed with the County of San Diego. We are going to be having our land surveyed soon and have the corners recorded. What rights do we have for getting our land back?

 

[NC Aggie]

What is the name of your state (only U.S. law)? California

We purchased a home 6 months ago in San Diego CA; in the disclosure portion of the paperwork the sellers were asked if there was any encroachment issues with the property! They answered NO, and then after we moved in we had an incident with our neighbor about the property line. The neighbor admitted that his driveway was on our land. We became curious and started measuring everything out. His driveway is actually 20ft on our property; this neighbor does have a second driveway he uses regularly that does not encroach. According to the other neighbors this was a known fact in the neighborhood and has been this way for 15-20 years. We only have a third of an acre so this is a significant portion and we would not have purchased the home if this was disclosed to us. We opened a claim with title and were told there was no agreement of land use or easement on record anywhere in the past, therefore it is a trespass and our claim was denied because there was no threat to title. We contacted the County of San Diego and they verified that there is ‘No easement or Agreement’ on file, and No ‘Application to Obtain Permission of use of land’ has ever been filed with the County of San Diego. We are going to be having our land surveyed soon and have the corners recorded. What rights do we have for getting our land back?

Well I agree with the assessment of your title insurer and since no easement is recorded, you have the right to have them abandon the driveway. To prevent future use, I would probably have the driveway removed but you may have to incur the costs to have the portion on your land removed because I don't know if you could sue to have the neighbor remove it or pay the cost to have it removed since it was already installed when you bought the property and the previous owner never objected.

It wouldn't surprise me if someone made the argument that your neighbor has a claim of adverse possession or a prescriptive easement. However, this would be less unlikely unless you allowed their use of the driveway to continue for an extended period of time (generally 7-15 years but varies from state to state) and it sounds like you're objecting to it right away. If they were to make a claim for a prescriptive easement or adverse possession, they would have been more likely to obtain this with the previous owner.

 

[JETX]

What rights do we have for getting our land back?

First, ignore 'NC Aggie'... as he is clearly IGNORANT of the laws...

Get your survey done, then send (certified RRR) a copy of the survey to your neighbor with a request that they contact you within 'x days' to 'remove their encroachment' on your property (I suggest giving them 10 days from receipt). If they don't contact you, then you need to get an attorney to handle it (as it will have more impact).
You need to make it very clear to them that they have no rights of ownership of the property they are using.

 

[NC Aggie]

First, ignore 'NC Aggie'... as he is clearly IGNORANT of the laws...

Get your survey done, then send (certified RRR) a copy of the survey to your neighbor with a request that they contact you within 'x days' to 'remove their encroachment' on your property (I suggest giving them 10 days from receipt). If they don't contact you, then you need to get an attorney to handle it (as it will have more impact).
You need to make it very clear to them that they have no rights of ownership of the property they are using.

EXCUSE ME!! What exactly did you say that was any different than what I said other than the fact that it's "debatable" that they could force their neighbor to pay for the removal of the driveway? As I stated, the property owner is in his/her rights to prevent their neighbor from future use of the driveway. However, since the driveway was installed when they bought the property and the previous owner allowed this, then in essence it could be viewed that the OP bought the portion of the driveway on his property...thus becoming responsible for removing it. I'm not saying that's the case, but I think this issue is definitely left to debate.

 

[MountainDew]

EXCUSE ME!! What exactly did you say that was any different than what I said other than the fact that it's "debatable" that they could force their neighbor to pay for the removal of the driveway?

As for the OP, until you get this cleared up, I would rope off the area and post "no trespassing" signs. Often "trespassing" cannot be enforced unless it's "posted".

 

[drewguy]

Get your survey done, then send (certified RRR) a copy of the survey to your neighbor with a request that they contact you within 'x days' to 'remove their encroachment' on your property (I suggest giving them 10 days from receipt). If they don't contact you, then you need to get an attorney to handle it (as it will have more impact).
You need to make it very clear to them that they have no rights of ownership of the property they are using.

This. And it will also have the beneficial effect that if they plan to claim adverse possession of some sort that they will likely assert it in a response letter. If they do, then you can turn the letter over to the title insurance company and let them do battle to resolve the claim.

 

[jl.828]

Thank you for your time & energy in this matter.

Thank you all for your time in responding to our question. All made many good points & tips on our issue. We understand that we may have to pay to have the driveway portion removed & thanks for the heads up on that. We will get survey done & then speak to this neighbor in person & followup with a Certified Letter explaining again our expectations. We know that they bought thier property only 6yrs ago, but the driveway in question was there prior to their purchase. Thanks again. We just want what we pay our high property taxes & insurance for... all of our land. Thanks again!!

 

[MountainDew]

Just another point, you don't necessarily have to "remove" the driveway to make them stop using it. You can, after you get done with the legal stuff, simply tell them to stay off and leave it as is, if you wish. Maybe you could use it for parking or something...