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We bought a home in January of 2001. Our back fence was our…

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We bought a home in...
We bought a home in January of 2001. Our back fence was our property line as far as we knew. 3 years ago we approached the neighbor in the back to share the cost of a new fence. They agreed, but said we would have to move it on our property 3 feet as it wasn't the correct property line. We disagreed, and said we would have to rip out our sprinklers, and part of our cement patio and a retaining wall we built at their request to do so. Our property is 18" higher than theirs and the sprinkler system washed dirt down into their yard. We told them we believed the fence to be the property line and would not move it in 3 feet. We asked them if they had a formal survey. The answer was no. We left it at that. We want to put in a pool and need to know what is our legal right ? We have not been formally advised of any new property line only their comments to us.
Submitted: 8 years ago.Category: Real Estate Law
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6/17/2010
Real Estate Lawyer: Phillips Esq., Attorney-at-Law replied 8 years ago
Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Real Estate Law
Satisfied Customers: 22,731
Experience: B.A.; M.B.A.; J.D.
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Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.

 

We bought a home in January of 2001. Our back fence was our property line as far as we knew. 3 years ago we approached the neighbor in the back to share the cost of a new fence. They agreed, but said we would have to move it on our property 3 feet as it wasn't the correct property line. We disagreed, and said we would have to rip out our sprinklers, and part of our cement patio and a retaining wall we built at their request to do so. Our property is 18" higher than theirs and the sprinkler system washed dirt down into their yard. We told them we believed the fence to be the property line and would not move it in 3 feet. We asked them if they had a formal survey. The answer was no. We left it at that. We want to put in a pool and need to know what is our legal right ? We have not been formally advised of any new property line only their comments to us.

 

Response: You need to get a formal survey of property before you can do anything. Once the survey is done and confirmed the property line is where the fence is, then you can provide this information to your neighbors to avoid any future misunderstandings. You may also ask if you want for the neighbor to contribute to the cost of a formal survey.

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Customer reply replied 8 years ago
We were told there is a perscriptive easement law. We do not want to pay for a formal survey, since the burden of proof should be on them. Is there a law that protects us since we have had use of this property for over 9 years.
Real Estate Lawyer: Phillips Esq., Attorney-at-Law replied 8 years ago

Thank you.

 

I will now opt out and give another Expert the opportunity to further assist you.

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Customer reply replied 8 years ago
What other information do you need?
Real Estate Lawyer: David L, Lawyer replied 8 years ago
David L
David L, Lawyer
Category: Real Estate Law
Satisfied Customers: 3,255
Experience: Attorney licensed in multiple jurisdictions.
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Hi. What state do you live in?
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Customer reply replied 8 years ago
California
Real Estate Lawyer: David L, Lawyer replied 8 years ago

You are correct that there is the law of prescriptive easement. If someone uses your land in a certain way for a certain period of time, one can gain certain rights on the land which are permanent, such as rights of entry or to pass over the land for a specific purpose. This is a prescriptive easement. This is not ownership, but a right of use.

 

California courts are very hesitant to grant prescriptive easements. For example, in one fencing boundary case similar to yours, the court found that an exclusive prescriptive easement that "as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one."

 

In another similar boundary dispute case, the court held that an exclusive prescriptive easement, "which as a practical matter completely prohibits the true owner from using his land," will not be granted in a case involving a typical residential boundary encroachment.

 

Based on California law, if I were advising you, I would counsel you that a prescriptive easement is not a winning argument. I think the previous expert was correct in suggesting that a survey would be an appropriate tool to obtain, especially if you are contemplating a pool. The burden of proof is not on your neighbor to prove the boundaries, and I think it would be more than fair if the parties shared the cost of the survey.

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Customer reply replied 8 years ago
let me get back to you
Real Estate Lawyer: David L, Lawyer replied 8 years ago
Sure.
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