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Fence and Boundary Line Disputes

The Legal Sausage

You just discovered that the fence between your house and your neighbor’s, which has been there for years, is displaced from the true property line. Are your property rights in jeopardy? Does your neighbor have rights in your property? The fence has been there for as long as anyone can remember. What do you do?

It is often said that the two things you do not want to see being made are laws and sausages. In this article we are going to take a look at a legal sausage, the “equitable easement.”

The law regarding fence and boundary line disputes is a combination of legislative statute and case law. In the next four paragraphs we will examine two relevant statutes as a background to understanding the case law that has evolved concerning fence and boundary lines.

Title to property is usually transferred by means of a deed. In some cases title to or use of property can be acquired by merely occupying and using the property for an extended time. In colloquial parlance this can be thought of as “squatter’s rights.”

Adverse Possession="Ownership
A squatter can acquire ownership of a property by “adverse possession”, which is set out in the Code of Civil Procedure at § 325. The first element of adverse possession is occupation of the property in a manner that is “open and notorious”, meaning under circumstances that give reasonable notice of the occupation to the true owner. The possession and use must be continuous for a period of five years or longer. The possession must be under a claim of ownership or right; in other words, contrary to the true owner’s claim. And, finally, the claimant must pay the taxes on the property. A party who can establish all of these elements may prevail in a claim of ownership to the property.

Prescriptive Easement = Right to Use
A squatter who cannot establish all the elements of adverse possession, such as the requirement of having paid the taxes on the occupied land, may be able to acquire a permanent right to continue a historical use of the occupied land by acquiring a prescriptive easement. The elements of a prescriptive easement are nearly the same as for adverse possession: an open and notorious use of the property for a continuous period of five years or longer, under a claim of right to the use, in a manner that is contrary to the true owner’s rights. A prescriptive easement does not require the payment of taxes except in the rare instance where the disputed property is separately assessed.

A successful claimant of a prescriptive easement does not acquire title, but, rather, acquires the right to continue a specific historical use of someone else’s property. This is a non-possessory and limited right to a specific use or activity, such as ingress and egress over a road to get to an adjoining property. But this right to a specified use is a lesser right than outright ownership.

1996 Cases on Prescriptive Easements in Fence and Boundary Disputes

Silacci v. Abramson In 1996 the evolving case law on fence and boundary disputes reached a certain level of clarity as a result of two important appellate decisions in that year. In May 1996, the Sixth District Court of Appeal (San Jose) decided the case of Silacci v Abramson. In that case Silacci filed suit against his neighbor, Abramson, contending that land fenced and used by Abramson as his back yard was actually Silacci’s property. For years Abramson had been using the disputed portion of property as a “back yard garden area.” The trial court determined that Abramson had acquired “an exclusive prescriptive easement” for the fenced-in portion of Silacci’s property.

The Court of Appeal reversed the judgment. It explained that the notion of an “exclusive prescriptive easement” that prevented the true owner from using his or her land had no application in a simple backyard dispute. An easement is merely the right to use someone else’s land for a specific purpose; it is not ownership. Exclusive use is too much like ownership. A prescriptive easement is one acquired by an adverse use for a certain period of time. But an easement is not ownership, and therefore an “exclusive prescriptive easement” was inherently contradictory because it amounted to giving a portion of Silacci’s land to Abramson without any rights remaining to Silcacci. This perverted the long-recognized distinctions in property law between ownership and use. For the most part, an easement, by definition, cannot be an exclusive use. It cannot exclude the true owner.

Mehdizadeh vs. Mincer Then in June 1996 the Second District Court of Appeal (Los Angeles) weighed in on this subject with its decision in Mehdizadeh vs. Mincer. A former owner of Mincer’s property had erected a fence with the acquiescence of his then-neighbors, the prior owners of Mehdizadeh’s property. After Mincer bought his property he conducted a survey that revealed that the dividing line between the properties was ten feet farther out from the existing fence, and so he built a new fence on the property line. Mehdizadeh sued, claiming a prescriptive easement over the ten-foot strip and seeking to have Mincer restore the original fence. In an appallingly bad decision the trial court entered judgment for Mehdizadeh, holding that the “doctrine of agreed boundary” established the boundary line at the original fence, and awarded the ten-foot strip to Mehdizadeh for the restricted purposes of landscaping and recreation, with an easement to Mincer for light, air, and privacy. The trial court also gave Mehdizadeh a prescriptive easement subject to the same conditions as the agreed boundary. By now the astute readers of this article will have begun to understand why the Court of Appeal reversed the decision of the trial court.

Doctrine of Agreed Boundary - Not Applicable
First, to explain the doctrine of agreed boundary, it arose as a means to settle boundary disputes in an earlier time when surveys were less accurate and survey monuments were often not able to be located. Today surveys are more accurate and verifiable recorded boundaries are usually ascertainable. The doctrine of agreed boundary is an exception to the general rule that the recorded property description is controlling. Because the doctrine of agreed boundary is an exception, it only applies under specific circumstances. The required elements are (1) uncertainty as to the true boundary, (2) an agreement between the adjoining owners to fix the property line, and (3) acceptance and acquiescence to the agreed line for five years or a different period if substantial loss would be caused by a change in the line. However, where there is no evidence that present or prior owners had a boundary dispute or agreed to a particular resolution of it, and where recorded records provide a reasonable basis for ascertaining the boundary, the doctrine does not apply.

The Court of Appeal in Mehdizadeh reiterated the elements of the doctrine of agreed boundary and found that there had been no evidence of a boundary dispute between the parties or their predecessors, and there was no evidence of uncertainty as to the boundary nor agreement to establish one. The Court held that a long period of acquiescence without evidence as to uncertainty and agreement among the original owners was insufficient to establish an agreed boundary and none could be inferred.

Drawing on the 1994 California Supreme Court case of Bryant v. Blevins the Court said, “Where the evidence does not satisfy the requirements of the doctrine, the law should not employ the agreed-boundary doctrine ‘to trump the boundary established by the legal records’ and ‘to dispossess an owner of his land when a legal means of establishing an accurate boundary lies quite readily and conveniently to hand’.” (citations omitted)

Prescriptive Easement - Not Applicable
Having thus dispensed with the trial court’s improper application of the doctrine of agreed boundary, the Court of Appeal next turned its attention to the second basis for the decision in Mehdizadeh, the prescriptive easement. First the Court reiterated the elements of adverse possession and prescriptive easements, and that adverse possession results in ownership, whereas a prescriptive easement results only in the right to use the land of another for a specific purpose. The Court also reiterated that adverse possession requires the payment of the taxes on the disputed property.

Mehdizadeh could not establish adverse possession because he had not paid the taxes on the strip between the original fence and the new fence. The Court of Appeal said that the trial court erroneously granted Mehdizadeh an interest that amounted to adverse possession under the guise of a prescriptive easement because it excluded the Mincers from entering or making any use of their property. In so doing the trial court had merged the concepts of adverse possession and prescriptive easement.

The Court of Appeal acknowledged that the concept of an exclusive easement could exist under certain circumstances. It described a case, also discussed in the Silacci decision, where a municipal water district had mistakenly built, fenced, and for years maintained part of its reservoir on another’s property. The evidence showed that the property owner’s proposed use would interfere with the operation of the reservoir and that it was necessary for the water district to have exclusive use in order to prevent potential contamination of the water supply and for other health and safety purposes. The Court of Appeal in Silacci emphasized the health and safety rationale as being a distinguishing element of the exclusive prescriptive easement in the water district case, and reiterated that an exclusive prescriptive easement is a “very unusual interest in land.” It went on to state that the exclusive prescriptive easement must be limited to circumstances involving health and safety, and that no public health or safety issues were involved in the Mincer’s backyard dispute with Mehdizadeh.

The Court concluded by reiterating that, as a general rule, the description of land contained in the deed is controlling and that if it were to uphold the trial court’s decision in Mehdizadeh it would be ratifying a novel “fencing easement” that would dispossess an unconsenting landowner of his or her property while disregarding readily available, accurate legal descriptions. Thus no transfer of an interest as comprehensive as an exclusive prescriptive easement can be imputed to a property owner without a clear indication of an intention for such a transfer.

And so, since 1996, real estate lawyers have basked in the comfort of a fairly clear rule. A misplaced fence does not create a prescriptive easement because a fence defines an exclusive use to the exclusion of the true owner. The element of exclusivity is a feature of ownership and is inconsistent with the basic concept of an easement.

August 2001, The Equitable Easement is Born

Hirshfield v. Schwartz Then in August 2001, the Second District Court of Appeal (Los Angeles) handed down its decision in Hirshfield v. Schwartz. The Hirshfields were two elderly sisters who, since 1940, had lived on a large lot of nearly three-quarters of an acre in Bel Air. The Schwartzes bought the neighboring lot of nearly an acre in 1979. In the 1950s the Schwartzes’ predecessor had built a swimming pool and erected a chain link fence down part of what was presumed to be the property line. After their purchase, the Schwartzes extended the chain link fence down the presumed property line and built waterfalls, a koi pond, a stone deck, a putting green and a sand trap, as well as a block wall. Next door the Hirshfields maintained a garden that had become a “botanical showplace” with a wide variety of exotic plants and trees.

In 1997 the Hirshfields conducted a survey that revealed two sections of the property being used by the Schwartzes were owned by the Hirschfields, and a portion of the Hirschfield garden actually was on the Schwartz property. The Hirschfields sued for quiet title, trespass, and declaratory relief. The Schwartzes defended on several bases, including the existence of “an easement by prescription or otherwise.”

The Relative Hardship Doctrine

The trial court applied the “relative hardship doctrine” discussed in some older cases, including Christensen v. Tucker (1952). The elements of this equitable doctrine of “relative hardship” are that (1) the encroaching defendant must be innocent, meaning not willful or negligent, (2) the plaintiff will not suffer irreparable injury by continuing the encroachment, regardless of the injury to the defendant, and (3) the hardship to the defendant if required to remove the encroachment must be greatly disproportional to that which would be suffered by the plaintiff landowner if the encroachment were allowed to continue. This analysis must be more than simply balancing conveniences, because upholding the rights of an encroacher is close to being an exercise of eminent domain for the benefit of a private party, and so there must be proof of irreparable harm to the encroacher, not just the loss of a substantial benefit. It must be a substantial hardship on the encroacher to remove the encroachment for doctrine to apply to allow the encroachment to remain.

Weighing the Hirshfields’ intended uses against the Schwartzes’ costs to remove and relocate the improvements, the Court determined that, although there were equities on each side, the balance tipped in the Schwartzes’ favor. Thus the trial court granted the Schwartzes “an easement” that would terminate if the Schwartzes ever moved or sold, and required the Schwartzes to pay the fair market value of the property to the Hirschfields, about $23,000.

The Court of Appeal upheld the decision in Hirschfield v. Schwartz. By now the astute reader of this article must be wondering how the Court of Appeal could reconcile this with the decisions holding that a backyard encroachment cannot create an easement. The Court of Appeal was quick to say that although the trial court called its decision in favor of Schwartz an “easement,” it really didn’t mean an easement. In the opening paragraphs of the decision the Court of Appeal said, “... the protective interest at issue here was created in equity and was not a prescriptive easement. As such, decisions which bar the creation of exclusive prescriptive easements do not apply.”

The Court of Appeal distinguished the decisions in Silacci and Mehdizadeh and others, saying, “... the interest which the trial court labeled an easement arose solely from its equity power. Thus, the prescriptive easement decisions cited by the Hirshfields are irrelevant.” Avoiding the “easement” terminology in this case, the Court of Appeal rephrased the trial court’s use of the word “easement,” and instead labeled it as an “equitable protective interest.” It also suggested that the decisions in Silacci and Mehdizadeh might be “overbroad.”

In this well-intended but terribly flawed decision the Court of Appeal has created an “equitable easement” while not calling it as such. The decision leaves more questions than it answers. For example, the $23,000 monetary award to the Hirschfields is the “fair market value” of what? The Schwartzes are required to relinquish the “easement” when they sell or move. What time period is contemplated by the $23,000 payment? A month, a year, ten years? Would a foreclosure by the lender of either landowner wipe out the easement, given that lenders were not parties to the litigation and thus are not bound by the decision? What would be the consequences if the land parcels were smaller and the building-to-land-area ratios were affected by the encroached area?

As a consequence of the equivocal decision in Hirschfield your lawyer cannot tell you with certainty what might be the effect of a displaced fence. It appears the Court has made a legal sausage, only this one is hard to swallow.


This article written and © Peter N. Brewer, Esq.

The Law Office of Peter N. Brewer (www.BrewerFirm.com) serves the legal needs of homeowners, real estate and mortgage brokers, agents, brokerages, title companies, developers, investors, other real estate professionals and their clients. Mr. Brewer and his firm also represent clients in debt collection, breach of contract matters, and other litigation and transactional work. The firm's client range from homeowners, brokers and lenders based in Santa Clara County, San Mateo County, San Francisco County, as well as throughout other counties in California.

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