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Adverse possession of easement

Discussion in 'Adverse Possession' started by SoCalJoe1965, Sep 14, 2021.

  1. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    Jurisdiction:
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    I purchased a property burdened by a 20-foot right of way easement that grants street access to property/house behind mine. This house has been served by a 10' driveway since it was built in the mid 1960s.
    My property is surrounded by a fence line that has been in place for over 50 years. The fence was replaced by the previous owner of my house. All that time, the fence has encroached over a portion of the easement. The previous owner of my house was asked to move the fence by the owners of the dominant tenement sometime around 2005 and his reply was basically - "I'm not moving anything, I bought what I bought and that's that!".
    I purchased my house in 2018 and the rear property was sold to new owners soon after. They are now threatening legal action to make me remove the portion of the fence encroaching on the easement because according to them it creates an "unreasonable burden" to their egress/ingress rights.

    My question is - do I have a case to extinguish the encroached upon portion via adverse possession?
    1) The 6' redwood fence has completely enclosed the disputed portion for over 50 years, in which time said portion has been used as part of the back yard to grow trees 20-30 feet high.
    2) The fence was obviously "open and notorious" since the owners of the servient tenement would see it upon entering their driveway.
    3) Taxes have been paid since the easement portion was not assessed separately from the rest of the property.
    4) When the previous owner was asked to remove the fence he refused, which I believe meets the "hostility" clause.

    Item 4 is what concerns me though, as the previous owner has passed away. I only know of his refusal to move the fence from a conversation I had with a neighbor who used to visit with him.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    There are others that are smarter than I when it comes to easements but I think that the fallacy of your argument is that an owner cannot adversely possess his own property.

    The easement can be enforced. Whether the encroachment actually creates an "unreasonable burden" to their egress/ingress rights is something for a court to decide.

    It doesn't cost them anything to "threaten" a lawsuit but it could cost them thousands in legal fees up front to make good on the threat.
     
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  3. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    Thank you for your response. However, I have read a number of cases where servient tenements were able to argue adverse possession in order to extinguish portions or the entire easement. I am in no way challenging your knowledge or expertise, but respectfully disagree based on the excerpt below.

    " 'It is settled law that an easement, whether acquired through a grant, adverse use, or as an abutter's right, may be extinguished by the owner of the servient tenement by acts adverse to the exercise of the easement for the period required to give title to the land by adverse possession.' Popovich v. O'Neal, 219 Cal. App. 2d 553, 556 (Cal. App. 5th Dist. 1963). See also, Glatts v. Henson, 31 Cal.2d 368, 370 [188 P.2d 745]; Rest., Property, § 506, p. 3090; 17 Cal.Jur.2d § 40, p. 149.). "
     
  4. Tax Counsel

    Tax Counsel Well-Known Member

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    The hostile element of adverse possession means that the adverse possessor (you in this case) is using the property in a manner hostile to the interests of the true owner/possessor of the land. In other words, you are not using it with the consent/permission of the true owner. If the existence of the fence is interfering with the use of the easement that should be good enough. Generally consent is something for the party opposing adverse possession to prove. You are correct, though, that you'd likely not be able get the evidence about the prior owner's conversation about the fence admitted in court. That would be hearsay and in general hearsay is not admissible.

    If you want to establish adverse possession over the easement, see a lawyer experience with adverse possession litigation. Those tend to be rather peculiar claims to litigate and not something that most people can do well on their own (pro se). In the states I'm familiar with you'd do it with an action to quiet title, for which there are specific requirements.
     
  5. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    Thank you for your response. I will definitely be gathering info and look into contacting an attorney.

    As a follow up question - what actions can I take if my neighbor or his hired contractor remove or attempt to remove my fence without my permission?
     
  6. zddoodah

    zddoodah Well-Known Member

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    You have an argument. Determining whether your argument would likely carry the day would require case research and/or a consultation with a real estate lawyer.

    If you catch someone in the act, you can call the police. If it's already happened, all you can do is sue.

    Unless you have the resources and a taste for litigation and don't care about having a nasty relationship with a neighbor, I'd try to work something out with the neighbor.
     
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  7. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    Thank you for the correction re argument vs case. I will definitely be contacting a lawyer for advise.

    While I hope some agreement can be made, this new neighbor has decided that he wants every square inch of the easement and will not take less. We'll see how it goes.

    Thanks for the advice.
     
  8. welkin

    welkin Active Member

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    Putting up a fence inside an easement boundary is not an adverse use that would lead to a successful claim of adverse possession. Cutting the lawn or growing trees on the possessed property would not lead to adverse possession. Putting up a barn or building on the easement may give rise to AP.

    The case you cited was about an easement that was granted by prescription. It appears that your servitude was granted by a grant in a deed. As such, and if appurtenant the dominant estate gets to use the entire width of the easement in perpetuity unless abandoned and there is a ruling from a court that the easement was extinguished. That is not going to happen because of a fence line. There was nothing that was adverse or hostile to your use of your own property. You admit as such.

    That is true Jack but there are limited cases where an easement on the servient estate can be changed. But it is not by AP.

    OP should seek out the advice of an attorney. But AP is a waist of time and money in MHO.
     
  9. welkin

    welkin Active Member

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    The OP is the servient estate.
     
  10. adjusterjack

    adjusterjack Super Moderator

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    Seems to me that the neighbor is entitled to full use of the original 20' easement. If he sues you to enforce it you will spend a lot of money in lawyer fees and probably lose, then have to spend a lot of money restoring the easement. If he just removes the fence and trees and you sue him, you will probably lose.

    Might be less costly for you to just relocate the fence to where it should be and cut down the trees.
     
  11. Tax Counsel

    Tax Counsel Well-Known Member

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    Right. And I understand it, the OP's claim is that his fence has had the effect of denying the easement holder of his use of the easement and thus he (and his predecessors) have had the adverse use of the easement instead.
     
  12. welkin

    welkin Active Member

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    Then you don't understand adverse possession. OP is dealing with a granted easement not the adverse use of his property. The dominant estate can use the easement any way they want as long as it doesn't impede the use of the property by the servient estate. The fence line did not impede the use of the servient land. If anything, it impeded the use by the dominant estate.

    There is no adverse use of the servient property.
     
    Last edited: Sep 15, 2021
  13. Tax Counsel

    Tax Counsel Well-Known Member

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    I do understand it. I'm not saying that the OP has a good claim to make. I think he needs to see a lawyer in his state about that. I merely explained to him what the "hostile" element in adverse possession is about.
     
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  14. welkin

    welkin Active Member

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    OK, but the use of the easement was not hostile. It was used (or not used) by a grant to the dominant estate. The fact that the dominant estate didn't use the entire easement for 50 years does not give rise to the hostile use by the servient estate. A granted easement is not extinguished by none use.

    The OP (servient estate) cannot now claim the adverse use of his own property because his predecessors gave permission to the dominant estate to use the land and nothing the dominant estate did in the 50 years would be seen as abandonment. The servient estate built the fence.
     
  15. Red Kayak

    Red Kayak Well-Known Member

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    Just out of curiosity, how large an encroachment are you taking about? Inches, feet, yards?

    There's the letter of the law, and there's the intent. The easement was created for egress/ingress. If they are alleging "unreasonable burden", then the burden is relevant. How difficult is it to access the property? This includes not just personal vehicles - if they need repairs, or have a large delivery, is there adequate access?

    I have no idea who is being less reasonable. I do know that it is rare for neighbors who threaten litigation to become more agreeable. There may be a detente, at best. And a breaking of the detente may be easily triggered.
     
  16. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    Thank you for your opinions, it definitely helps me think more about the issue and while I have set up an appointment to speak with a real estate lawyer, I found this case here in California:

    Defendant (servient estate) was able to successfully extinguish an appurtenant roadway easement created by grant deed via adverse possession and abandonment, by the erection of a wooden barrier and storage of "junk". The excerpt below is from the judge's opinion re adverse possession by servient estate.

    From Masin v La Marche
    Civ. No. 63467. Court of Appeals of California, Second Appellate District, Division Five. October 19, 1982

    " 'It is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession. [Citations.]' (Id, at pp. 370-371; Rest. Property, § 506.)"
     
  17. adjusterjack

    adjusterjack Super Moderator

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    I don't know if this makes any difference but would that decision apply to an easement that is, and has been, regularly used for ingress and egress where only a side of the easement was closed off by the servient tenement owner.
     
  18. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    There's probably 12' width of space. Although I don't see semi trucks going down there - I have seen cement mixers, dump trucks, and at one point SoCal Edison drove large trucks to replace a telephone pole. Not sure how much it matters, but there's a development of four houses down the street that are served by a driveway of similar width. In that case, a 23' wide easement was encroached on by the driveways of two houses in such a manner that the only access to the rear two houses is by a 10-11' driveway.
     
  19. SoCalJoe1965

    SoCalJoe1965 Law Topic Starter New Member

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    Good point. Although I am not arguing the extinguishment of the entire easement, just the portion enclosed by my fence.

    In Scampini v. Rizzi, supra, 106 Vt. 281, 172 A. 619, a case that has been cited in California cases, the servient estate was able to establish adverse possession of a portion of roadway easement burdening their property and thus extinguish that portion. In this particular case, it was a porch that was encroaching 13 inches into the driveway.

    That case was cited in Glatts v Henson [L. A. No. 19874. In Bank. Jan. 27, 1948.] and in his opinion, the judge writes:

    "[3] The extinguishment by adverse possession need not be of the entire easement. It may be extinguished in part--to the extent that is embraced in the scope of the adverse possession (See Scampini v. Rizzi, 106 Vt. 281 [172 A. 619]; Brooks v. West Boston Gas Co., 260 Mass. 407 [157 N.E. 362]; 33 Mich.L.Rev. 1270.)"
     
  20. welkin

    welkin Active Member

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    In all the cases you cited there is not one that only deals with a fence line. There are no permanent structures erected by you on the easement. There is nothing being stored by you on the easement.

    Go and see the attorney and if he tells you that you have a case for AP ask a different attorney. Otherwise you will end up spending a great deal of money and years in litigation only to lose.
     
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