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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33761
Experience:  15 years real estate, Realtor. Landlord 26 years
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I have a fence post that is 3 inches at most on my neighbors

Customer Question

I have a fence post that is 3 inches at most on my neighbors side (on the driveway on the alley that they never use for a car!). It has been there for over 30 years. I am now selling the property and the angry neighbor wants it torn down. She has never mentioned it prior.
I am in the time frame where it cant be disputed now? The property report from the city shows clear title.
Thanks
Kitty
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Barrister replied 9 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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The statute of limitations in CA for claiming land through "adverse possession" is only 5 years. However, the problem is that it requires the person claiming the land to have paid the taxes on the land they are claiming for that 5 years as well.

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So if there is a little sliver of land that you encroached on, then it is unlikely that you were taxed additionally by the taxing authority and wouldn't be able to prove that you did so.

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With that said, you could likely claim an easement to continue to use that land, if not legal ownership, because that doesn't require the payment of taxes on the disputed land.

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So here, if the neighbor wanted to make an issue of it, she could file a suit against you for trespass and ejectment and you could counter sue her for adverse possession and seek an order from the court granting you an easement so you and any successors in interest could continue to use it.

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But unless the neighbor actually takes some kind of legal action, then you don't really have to do anything.

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thanks

Barrister

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