We have a difficult neighbor, who has an outbuilding which has a back wall that rests on our property line. Neither the title/deed, or city records show any easement, but she put a gate that goes between our yards before we bought the place. We do not wish to offer her access at this time as she has been destructive. Can she get an easement if we protest? SHe does not have to cross our property to access the entrance, it's a brick shed. We are in Berkeley, CA.
State/Country relating to question: California
We tried to reason with her, as we realized she had been trespassing to top off a tree in our yard that was "blocking light". We called the police to help us communicate with her, and tried to go to mediation, but she will not go. She claims, "I can come onto your yard any time I want to maintain my wall". We offered her permission on a case by case basis, to which she first agreed in an email, and then changed her mind. We also spoke to the city, found no easement whatsoever.
She has no right to enter the property to trim a tree in your yard, and she does not have a solar easement.Small claims court can issue an injunction against her trespassing, and can award nominal damages for past trespassing plus any damages for harm to the tree.If she won't mediate, it sounds like maybe a Judge needs to order her to stay out of your property. I assume the police may have told you "this is a civil matter" already, so small claims court may be your best option.http://www.dca.ca.gov/publications/small_claims/index.shtmlexplains how to use the small claims court. See alsohttp://www.courts.ca.gov/selfhelp-smallclaims.htmAnother option would be to have a local attorney send a letter warning that any future trespass will result in legal action. You can get a free consultation from some of the local real estate lawyers listed athttp://lawyers.findlaw.com/lawyer/firm/Real-Estate-Law/Berkeley/CaliforniaThe structure might be in violation of the setback requirements of the local ordinance:23D.08.030 Setback Requirements for Accessory Building or Structures///D. No accessory building or enclosed accessory structure that is within 75 feet of the front lot line may be erected or expanded so as to encroach closer than four feet to the side lot line, when abutting another lot. Any such building or structure which is located in excess of 75 feet from the front lot line such a building or structure may encroach closer than four feet to the side lot line subject to the fire isolation requirements, including setbacks and/or fire resistance wall requirements, of the Berkeley Building Code.///Fromhttp://www.codepublishing.com/CA/Berkeley/cgi/NewSmartCompile.pl?code=Berkeley&ext=html&key=336&path=/ca/berkeley/html/Berkeley23D/Berkeley23D08/Berkeley23D08.html#23D.08.030If this structure is within 75' of the street, you might want to call Code Enforcement and see if it will order her to remove it from touching the fenced property line, seetheir page athttp://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=6192You can schedule an inspection throughhttp://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=636I hope this information is helpful.
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