Good Fences Also Make for Encroachments on Property Boundaries

Neighbors throughout the San Fernando Valley and Ventura County are encroaching on one another.

These encroachments of a fence, garden or driveway may be as narrow as a few inches or as wide as several yards--but they’re prevalent in just about every border between local residents.

“Every land survey I’ve ever seen shows that land dividers and fences are off of the official lines dividing one parcel from another,” said Temmy Walker, vice president of Rodeo division of Prudential-Jon Douglas Co. in Woodland Hills. “I’ve never seen one survey that exactly matches the way the property is actually divided by neighbors.”

Most buyers, of course, never pay the several thousand dollars that a good survey costs, so nobody really knows precisely what the boundaries of the land are, said Walker, who has served as an expert witness in a case in which a buyer sued real estate brokers involved in a sale for misinforming the buyer about boundaries of the property. The brokers’ insurance company ended up paying $75,000 to an adjoining property owner to settle the issue and re-establish the buyer’s rights to a contested border.

When Walker has a buyer who wants to know the exact borders or when the buyer talks about eventually putting in a pool, she encourages the buyer to pay for a survey. Walker also provides the buyers with a disclosure statement telling them that neither she nor the seller know the “real” boundaries of the property being purchased.

Boundary conflicts between neighbors can get nasty.

One Sherman Oaks property owner planned to make changes on some property that had been fenced off more than five years earlier and occupied by his neighbors. He didn’t think there would be a problem since the property in question was actually his on paper.

He was wrong. The neighbors successfully argued in court that they had acquired what’s known as a “prescriptive easement.” The neighbors didn’t just get the easement, they got a settlement for about $300,000 for emotional distress and interference with their easement. And the original property owner still has to pay property taxes on the parcel.

Property owners who “sleep” on their rights may find that their property rights are gone as a result of neighbors claiming a prescriptive easement, adverse possession or some other interest that eats into the owner’s rights.

The problem of encroachments is particularly acute in hillside areas of the Valley, say local real estate agents and attorneys.

Developers in the 1950s cut into the hillsides with a series of slopes and terraces. The property lines were usually divided mid-slope, but many fences have since gone up right at the slope lines, causing either the up-slope or down-slope property owners to encroach on their neighbors.

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To acquire a prescriptive easement, the use must be open and notorious, adverse (without the owner’s permission), plus continuous and uninterrupted for at least five years. Neighbors can acquire a prescriptive easement for a garden, driveway, structure or just about anything else. Ironically, if the encroachment by a neighbor isn’t adverse, there’s no way to get a prescriptive easement.

Adverse possession works in much the same way as a prescriptive easement. Adverse possession, however, requires that the adverse possessor pay property taxes on the property in question for the five-year statutory period. If the adverse possessor can show five years of tax receipts and the other elements needed for a prescriptive easement, the adverse party then can acquire the property--instead of just getting an easement for a particular use.

Title insurance generally protects residential property owners against claims on their property that are based on some sort of recorded instrument--such as a recorded deed or easement or a real covenant / equitable servitude (which is basically a promise to do or not to do something on the land).

Most title insurance will not help a property owner who has a neighbor, for example, who is encroaching with a fence or driveway. These type of encroachments are, for the most part, not recorded, and only homeowners with special extended title insurance coverage will be covered. This type of extended coverage costs more and it requires a thorough inspection or survey of the property.

Most buyers usually do not need to get a survey or extended title policy coverage if they are buying a property on a relatively standard lot and the fences all seem to be in the right place.

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It is advisable, however, to keep an eye out for fences or walls or shrubbery that seem to extend beyond what would logically be the boundary or beyond the property line nails driven into the concrete curbs in front of many homes. If a neighbor is encroaching on your property, don’t just sit back and let it happen--either fight the encroachment or record a permissive use agreement that will stymie the neighbor from ever being able to claim an adverse interest.

Finally, sellers who have reason to believe a neighbor is encroaching had better disclose that fact to potential buyers. Failure to disclose can result in an expensive and messy lawsuit.