By: Keith J. Turner and Angelica J. Varela

An “encroachment” is the extension of a building, hardscape, fence, landscaping or other structure beyond the boundaries of the land on which it was rightfully constructed onto adjoining land, or into its airspace, without the permission or consent of the adjoining landowner.   Encroachments are often discovered when a land survey is done by a property owner when submitting a new property improvement, such as when a property owner wants to add a swimming pool or home addition.

Example – a property owner discovered that the neighbor’s building, gas meters and shed were all encroachments:


Sometimes  a property owner can seek to have an encroachment removed based on the legal doctrines of trespass and/or nuisance; but other times the law provides that such use and development can sometimes ripen into property rights.  (“In appropriate cases … California courts have exercised their equity powers to fashion protective interests in land belonging to another.”)  The facts, equities and legal arguments of a case determine the outcome.

The analysis can be complex and it is important for property owners to timely assert their rights, or they risk essentially losing a piece of the land.

  • Trespass; Nuisance
The legal term “trespass means an unauthorized entry onto the land of another.  Every wrongful entry on land constitutes a trespass.  Liability for trespass may be imposed for conduct that is intentional, reckless, negligent, or the result of an extrahazardous activity.
The term “nuisance” refers to unreasonable conduct:  “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”  (Civ. Code §3479.)  “The basic concept underlying the law of nuisances is articulated in the ancient maxim sic utere tuo ut alienum non laedas, that is, so use your own as not to injure another’s property.”
  • Adverse Possession

To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.

Encroachers usually can’t prove adverse possession because they have not been paying the property taxes.
  • Easement theory 
An easement is an interest in the land of another, which entitles the owner of the easement (often called the “dominant tenement owner”) to a limited use or enjoyment of the other’s land (the “servient tenement”).   An easement for a particular purpose does not include any other uses. An easement generally provides a non-possessory right to enter and use land in another’s possession and obligates the possessor not to interfere with the uses authorized by the easement.  However, an easement may also be a limitation upon the use of the servient tenement, such as providing the dominant tenant a “view easement,” “solar easement,” or conservation easement.   “An easement may be created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision….”
The weight of California authority prohibits a prescriptive easement for a fence and similar types of encroachments on another’s property where the fence prevents the servient tenement from making any use, occupancy, or enjoyment of the land.

Rather, most encroachment cases are decided based on the equitable easement doctrine, which provides that a court can deny a landowner’s request to eject an encroachment and instead force the landowner to accept damages as compensation for the judicial creation of an easement.  The equitable easement doctrine is sometimes called the doctrine of “balancing of conveniences” or the doctrine of “relative hardships.”

The elements to establish the right to maintain an encroachment by the equitable easement doctrine are: (1) the encroachment trespass was “ ‘innocent’ ” rather than “ ‘willful or negligent,’ ” (2) the public or the property owner will not be “ ‘ “irreparabl[y] injur[ed]” ’ ” by the easement, and (3) the hardship to the trespasser from having to cease the trespass is “ ‘ “greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.”’”
The specific facts of the case determine the outcome.
In Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, Bel–Air neighbors sued each other after discovering various encroachments, which included part of a golf sand trap, extensive underground water and electrical lines, several motors that served an adjacent waterfall and swimming pool, and an “exceptionally strong” reinforced concrete wall.  The parties assumed that the chain link fence marked their property line.   The plaintiffs had owned their home since 1940, and defendants bought the next door home in 1979.  In the 1950’s, the defendants’ predecessors had installed a fence in the wrong location. After decades of use, in 1997, the plaintiffs commissioned a survey and discovered that the defendants’ improvements encroached on their property.
The court held that although equities existed on both sides, it denied the plaintiffs’ requested injunction and permitted the defendants’ continued use of plaintiffs’ property. Though the trial court called the interest an “easement,” the court of appeal termed it a “protective interest” that the defendnats were required to pay the plaintiffs the fair market value of the land for their interest, and the interest would terminate when the defendants “either transferred the property or no longer lived there.”

In  contrast, in Shoen v. Zacarias (2015) 237 Cal.App.4th 16, the dispute was over 481 square foot flat patch of land between two hillside properties.   When the defendant purchased her property in 2003, she thought the patch was on her property and populated it with outdoor furniture—a cabana, a chaise chair, tables, and stools; none of it is set in concrete.  But in 2005, the plaintiff’s predecessor land surveyed the boundaries and discovered that the patch belonged to him, but told the defendant she could continue to use it for as long as he owned the property.   However, in 2006, the plaintiff purchased the property and in 2011, she demanded demand that the defendant remove the furniture, even though the plaintiff could not reach the flat patch of land without a building a staircase that would cost $100,000 to build.

The trial court granted the defendant an equitable easement but the court of appeal reversed, holding that a trial court has the power to issue an equitable easement authorizing a trespasser to continue her trespass in exchange for paying damages, but only if, among other things, the hardship on the trespasser in ceasing the trespass is “greatly disproportionate” to the hardship on the land’s owner in losing use of the trespassed upon portion of her land.  Because removing the furniture would only cost $275, the court held that the defendant was not entitled to an equitable easement because hardship was not “greatly disproportionate” on the defendant.

Shoen is important because the court rejected the lesser criteria of “balancing of conveniences” or “relative hardships” as the basis to determine equitable easement rights.  Rather, the court held that the encroacher to prove that ordering removing of the encroachment would be “greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.”

  • Parole License: verbal encroachment agreements may be enforceable
As discussed above, an easement provides a present incorporeal interest in real property that is protectable, irrevocable, and compensable.   By comparison, a “license” does not create or convey any interest or estate in the real property; it merely is a personal privilege to perform a certain act or acts without conferring any interest in the land.

In Richardson v. Franc (2015) 233 Cal.App.4th 744,  the dispute was whether a neighbor exceeded the scope of an express easement for access and utility purposes over a shared driveway, buy installing and maintaining landscaping, irrigation, and lighting.  The trial court ruled—irrespective of the terms of the easement—it would be inequitable to deny respondents an irrevocable license given their substantial investment of time and money on the landscaping and other improvements and the burdened property owner’s years of acquiescence.

Richardson is a major case because licenses are usually revocable, but the court held it was irrevocable – it ran not only in favor of the present owners and their successors-in-interest.   Hence, the court granted a permanent right that runs with the land, the way an easement does.

Richardson adds some important new factors to consider and use when handling encroachment cases.  The court in Richardson was obviously moved by all of the landscaping and other improvements that were made over the years and how the burdened property in fact benefited from letting the easement holder do all the work and pay for the landscaping and water bills over many years.

Conclusion.  The facts, the equities of respective parties and the legal arguments determine the outcome of encroachment cases.  Of course having good evidence such as photos and receipts is important.  But often more important is how the respective parties present and the winner is often the more reasonable party.   Encroachment cases like all neighbor disputes are often won by killer whales rather than sharks.

  1. Tashakori v. Lakis (2011) 196 Cal. App. 4th 1003, 1008.
  2. 59 Cal. Jur. 3d Trespass to Realty § 1.
  3. Miller & Starr, 6 Cal. Real Est. § 16:1 (4th ed.)
  4. Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 99-100.
  5. Main St. Plaza v. Cartwright & Main, LLC, (2011) 194 Cal. App. 4th 1044, 1053–54.
  6. Mehdizadeh v. Mincer (1996) 46 Cal. App. 4th 1296, 1305.
  7. Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.
  8. Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045.