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