Spring 1997: Boundary Disputes
By Michael J. Festa
Over the years I have advised clients in numerous
turf wars regarding the location and placement of backyard fences.
Two recent California District Court of Appeal cases have now fundamentally
changed how we view such disputes.
Background: In general, there are three distinct
legal theories applied to these backyard disputes: adverse possession;
prescriptive easement; and agreed boundaries.
While it is against the law to trespass on
another's property, if you continue to trespass for a long enough
period of time (5 years in California) then you may have the legal
right to claim ownership of the land (adverse possession) or the right
to continue to use the land (prescriptive easement).
The origin of this law lies in the history
of the "old west", when large parcels of land which had
first been claimed by people went unused. Such "waste" was
frowned upon by the courts. So, if someone else came on the land and
used it continuously, the land would become theirs.
In today's society, adverse possession claims
are very unusual. More often, when a person makes use of another's
property, it is only of a small portion of that property, which usage
may or may not be exclusive of any usage by the true owner. Such situations
commonly arise because a fence, hedge or wall is erected on the wrong
side of a recorded boundary line. Other situations involve building
encroachments and the use of common driveways.
The theory of prescriptive easement thus evolved.
Rather than becoming the owner of the disputed land, one merely acquired
the right to continue to use it.
The third theory, agreed boundaries, arises
where the neighbors simply agree, expressly or impliedly, to the placement
of a boundary line.
Application: Under the above theories, record
title of a disputed area has often been defeated by possession
(which as the saying goes, is nine- tenths of the law). Boundary
disputes among neighbors are common in densely populated
urban areas where property owners build larger structures on existing
lots within the confines of set back and sideyard zoning requirements.
In the past, although the outcome of these
cases was always difficult to predict, it was not unusual for the
occupying party to obtain an easement by prescription, allowing him
or her to maintain use and possession of the disputed property.
New Law: This law has changed significantly
in light of two 1996 cases: Silacci v. Abramson and Mehdizadeh v.
Mincer, which together have eroded the theories of an "exclusive" prescriptive
easement and of agreed boundaries, in what the courts term "simple
The Silacci case involved a three-foot high
picket fence which separated the adjoining landowners, but was not
located on the true and correct boundary. The trial court awarded
Abramson the exclusive use of the three- foot strip of Silacci's property
for a "backyard garden area." The Court of Appeal reversed,
and rejected the notion that Abramson should have the exclusive right
to use the disputed property which, as a practical matter, completely
prohibited the true owner (Silacci) from using his own property.
In Mehdizadeh, a chain link fence which had
been installed more than 20 years earlier, was not located on the
legal boundary between two properties. The disputed property involved
an area of vegetation which was cared for by Mr. Mehdizadeh, and
included a sprinkler system which was connected to his water supply.
Again, the trial court found in favor the user,
Mr. Mehdizadeh. Again, the Court of Appeal reversed, and held that "when
existing legal records provide a basis for fixing the boundary [as
in a subdivision with recorded tracts and lots] there is no justification
for inferring ... that the prior owners agreed to fix their common
boundary at the location of the fence." The court added that
the theory of agreed boundaries arose in an earlier time, "when
surveys were notoriously inaccurate and the monuments and landmarks
they described could not be located."
Conclusion: While the new cases tip the balance
of power in favor of the record title owner of the disputed property,
boundary disputes among neighbors are bound to continue. The increased
tensions between the underlying and historic policies that favor possession
versus the polices that favor record title will ensure it. As a practical
matter, it remains imperative for the parties and their attorneys
to work towards creative and amicable resolutions.