It’s a Bit Late to Draw the Line

Since 1940, sisters Ella and Ruth owned and lived in their home. In 1979, Amy and Andrew bought the house next door. The property line between the properties was unclear.

During the 1950s, the previous owner of Amy and Andrew’s home built a swimming pool and a chain-link fence halfway down the supposed property line. Ella and Ruth did not object.

They planted a row of trees on their side of the fence for privacy.

Between 1979 and 1996, Amy and Andrew extended the chain-link fence, built waterfalls, a koi pond, a stone deck, a putting green and a sand trap.

They also constructed a stone fence to keep their children safe in the frontyard.

In 1997, Ella and Ruth had a survey of their property made. It showed three encroachments of 32.5 square feet, 47 square feet and 217 square feet onto their property by neighbors Amy and Andrew.

Ella and Ruth sued Amy and Andrew for quiet title, declaratory relief and trespass. They wanted the encroachments removed.

Amy and Andrew denied the claims, raising affirmative defenses of laches (unreasonable delay in bringing a lawsuit, to the detriment of the defendant) and existence of an easement by prescription “or otherwise.”

At the trial, Ruth testified the encroachment space was needed to build a circular driveway and a greenhouse for her exotic plants. The judge personally inspected the properties.

If you were the judge would you rule that Amy and Andrew must remove their stone fence and other encroachments from the adjoining property of Ella and Ruth?

The judge said no.

The judge noted some of these encroachments had existed for many years. He was puzzled why Ella and Ruth had not complained or protested about them earlier.

The hardships on Amy and Andrew of removing the stone fence and other improvements, most of which they did not install and had existed for many years, would be considerable, he said. The benefits to Ella and Ruth would be minimal, he said.

Under the court’s equitable powers, the judge refused to order removal of the encroachments. However, no prescriptive easement has been created, he said.

Applying the “relative hardship doctrine,” Amy and Andrew should not be required to remove these encroachments, the judge ruled.

However, they are ordered to pay Ella and Ruth $24,025 for the three encroachments, he concluded.

*

Based on the 2001 California Court of Appeal decision in Hirshfield vs. Schwartz, 110 Cal.Rptr.2d 861.