One of the most challenging real estate and land use issues I have encountered
over the years are neighbor disputes regarding boundaries or the existence
of easements. In addition to the legal issues which can be involved, an
additional challenge is how emotional these disputes can become since
you are dealing with parties who are in most cases still living next to
Boundary disputes can involve the conflict regarding the placement of a
fence and sometimes even the location of a structure on adjoining properties.
A property owner will sometimes discover the fact that the legal description
of its property which has been an accepted boundary for decades may be
wrong. As a result, a purchaser of real property should never assume that
the structures and fences are all constructed on your property. The best
way of initially confirming that there is not a potential boundary issue
is to have a licensed surveyor complete a survey of the property prior
to your purchase. The survey will confirm the legal boundaries and what
is physically on the property is accurate. Always read your title documents
before buying and make sure you have a good legal description and know
the boundaries. In addition, don’t assume that if you are buying
a house in a planned residential development that you don’t have
to be concerned about boundary issues. I have had cases where the original
developer improperly constructed the fences or walls between properties
which has been discovered years and several owners later. You should also
be aware that if you live in a community which is also governed by a Homeowners
Association (HOA) and Covenants, Conditions and Restrictions (CCR’S),
these documents could impact how you deal with any boundary disputes and
how they can be resolved.
Most Boundary disputes only come to light when one of the real property
owners tries to do something with their property and discovers the encroachment.
Initially there will most likely be an attempt by the property owners
to try and resolve these disputes informally. However, it is frequently
unreasonable to expect the person who is encroaching on your property
to willingly remove an encroachment, either due to the cost, the fact
that the owner now relies on the encroachment for the use of its property
or a belief that it is not an encroachment.
When a boundary encroachment is confirmed and the property owners agree
to resolve it, they need to either remove the encroachment or if the removal
is not feasible, prepare the new legal descriptions of the new property
boundaries so that the legal descriptions of both properties are correct
going forward. You can also create a written easement which is further
discussed below. This is very difficult process to undertake without a
real estate attorney and experts who can survey and draft legal descriptions
which will resolve the issues.
If a dispute cannot be resolved among themselves, one of the parties may
file a lawsuit. In California, courts will frequently use what is known
as the “fairness and common sense doctrine”. This is an equitable
doctrine where the Court will balance the relative hardships of each property
owner when making is rulings. This analysis is incredibly subjective based
on the individual judge and, as a result, it is extremely difficult to
predict what the outcome might be. The result could be changes to original
plans which you might think are inequitable and do not have a reasonable basis.
There are Appellate Court decisions which have resulted in property owners
losing a part of their property to the adjacent property owner when that
property owner has encroached, even if intentionally, on the adjacent
property owners. This is because as the Court balances the hardship the
Court may conclude that the hardship and cost of removing the encroachment
is greater that the impact of the encroachment.
This potential unfair result is a major reason why you should try and resolve
boundary disputes without leaving the decision to the uncertainties of
Another frequent conflict involves easements. An easement creates a right
of use over the property of another for a specific purpose. In California,
there are four basic forms of easements.
A written easement is created by a deed or contract. The allowed use of
the easement is determined by the specific language contained in the easement.
Frequently it is for the purposes of ingress and egress to allow access
to a property, which might otherwise be landlocked. However, you also
have easements for drainage purposes, slopes and other similar uses.
It is very important that a written easement has a good legal description
of the property subject to the easement. Many disputes arise from inaccurate
legal descriptions or vague language regarding the use of the easement.
A second form of easement is by prescription. This is established by somebody
showing that it has used the easement openly, notoriously and continuously
for at least five years. This use has to be adverse and hostile to the
owner of the property. In other words, it is a use the property owner
would not want, but which the owner of the property should have known.
You will frequently find this form of easements in rural and less development
areas. However, it is important to know that if the property owner has
given permission to use the land, it is not a prescriptive easement.
A third easement is by implication. This form of easement is created by
the inferred intent of the parties and has a two prong test. First there
must a strict necessity for the easement such as access to an otherwise
landlocked parcel. Secondly, both of the properties involved were once
under the same title and the easement was used to the access the other
property. Please note that to claim an easement by implication the property
must be landlocked, not just that another access to the property is inconvenient.
The final form of easement is by necessity. It occurs when the easement
is essential for the beneficial use and enjoyment of property conveyed
to a property owner. This easement runs with the land and continues even
if property is transferred.
Disputes which arise regarding easements are frequently caused by the misuse
by the person entitled to use the easement or interference by the property
owner with the use of the easement. Easements may also be a method of
resolving boundary disputes which were discussed at the beginning of this article.
While easement disputes are often in more rural area, or on undeveloped,
properties, I have had cases where suburban subdivisions have not properly
created an easement. While you should have notice of a written easement
on the title report of your property, it can sometimes be very old and
the language vague. In regards to the other forms of easements, you may
have no notice when you purchase a property since the actions perfecting
the use of easement rights occurred prior to your ownership. As a result,
you must perform not only due diligence in investigating the history of
your property, but also the adjacent properties to determine if there
are any potential easements which would impact you.
In the case of vague written easements, or one of the other forms of easement,
I always advise that the parties attempt to create good legal descriptions
of the easement, the clear use of the easement and the responsibilities
of the two property owners which would include issues such as maintenance.
A clear and concise written easement will ensure that there is little
confusion regarding this issue when either party tries to sell their property.
In conclusion, in both boundary and easement real property disputes, it
is essential that you work toward creating the clear legal documents to
be recorded on the properties. While litigation may be necessary, it is
clearly the last resort due to both cost and the uncertainty of how the
courts may rule.