Daniel E. Hanley
Attorney at Law for Real Property - Boundary Disputes

San Jose, California, Attorney at Law since 1974 and licensed Real Estate Broker and Private Lender since 1980. In addition to real estate transactions, I specialize in elder law, estate planning law, real estate loans and small business matters. Call now for a free phone consultation.

While the boundaries of your real property may seem clear, the legal description and present accepted boundary of your property may be inaccurate. Even though a fence that has existed for many years may separate your property from that of your neighbor, the fence could potentially be located in the wrong place and the land you are occupying could actually belong to your neighbor, and vice versa. This comes as a shock to most Americans as the average citizen believes that real property boundary lines are fixed and have remained unchanged for many years.

Smart Real Estate investors have surveys performed before buying real property. If you failed to perform a survey before purchasing your real property, and there is doubt, or a conflict between you and an adjacent landowner as to "who owns what," you should contact a real estate attorney to help resolve your problem, as the legal ramifications underlying boundary line disputes are complex with often unpredictable results, especially when parties attempt to handle these type of disputes without the assistance of qualified real estate attorneys.

You never know - you may be encroaching on your neighbor's land, or, worse yet, your neighbor may be enjoying some of your land. Although real estate attorneys charge for their time, you will find that hiring a real estate attorney to handle your property boundary line dispute will ensure you are complying with and taking advantage of the legal recourse(s) available to you, which will end up saving you a great deal of money in the long-run, as inches in real property can sometimes equate to thousands of dollars.

California Courts have historically applied "fairness and common sense" in deciding boundary line disputes. Sometimes, this equitable concept results in changes to original plot maps that actually seem to be inequitable and defy common sense. The "fairness and common sense" principle calls for the Court to weigh the prospective relative hardships incurred by the parties when granting or denying an injunction, which makes Court rulings in boundary line dispute cases extremely difficult to predict, as the outcome often hinges on the subjective feelings of the particular judge overseeing the case.

Numerous California case decisions have required landowners to surrender part of their ownership interest in Real Property to adjoining landowners even when the adjoining landowner intentionally encroached onto the property of the "true" owner because in "balancing the hardship," the Court felt that if "true" ownership interests were restored, the hardship faced by the encroaching party to restore said ownership interest was greater than the hardship faced by the "true" owner. Thus, oddly enough, the Court sides with the encroaching party and not the "true" owner, finding that the encroaching party had lawfully acquired ownership to the land in controversy.

This seemingly unfair result is just one example of the "injustice" that can occur in boundary line dispute decisions, which is why you need to consult the professionals at Hanley Law as we have over 35 years of experience with these type of real property matters and know what positive and negative factors influence judges in the determination of boundary line disputes.

Don't wait another minute - CONTACT US today to ensure your interests are protected!

Recent California majority decisions seem to have deviated away from the "fairness and common sense" theory and/or "agreed boundary doctrine" and rely on the expertise of surveyors and legal descriptions where the following two criteria are met:

Available legal records (such as accurate surveys and/or legal descriptions) provide a reasonable basis for fixing boundaries; and

The party relying upon the agreed boundary doctrine fails to establish that uncertainty as to the location of the true boundary led to the landowners creating an agreed upon boundary location.

The Agreed Boundary Doctrine is a legal theory historically used by California Courts that establishes boundary line location through agreement of the disputing adjacent landowners when said adjacent landowners are uncertain as to the true location of their common boundary.

There are practical problems associated with using a map, survey, or legal description, however, which is discussed below.

Can't the court simply follow the map, survey or legal description?:

California Courts have been known to completely ignore maps, legal descriptions, and surveyor's assertions of "true" boundary lines when it is found that an express or implied agreement exists between adjacent landowners. For example, the owners may have expressly or impliedly created to boundary line location by erecting a fence that stands for many years. In these circumstances, California Courts disregard the intent of the developer and/or original owner(s) and enforce the express or implied agreement of the present day owners as to the boundary line location.

The following examples illustrate some of the many other reasons that Courts are unable to simply follow the map, legal description, or survey, and must review the underlying facts to determine boundary line location:

The legal description may be faulty;

A farmer may or cultivate an area of land for the prescribed statutory period, thereby "adversely possessing" the land and making the farmer the lawful owner of the adversely possessed real property, even if the farmer doesn't technically own or acquire the land by traditional means;

Removal of an encroachment may injure the public, which is contrary to public policy, and therefore favors the existing encroachment;

The encroachment may be small and more costly to move than to keep in its existing location, which favors the existing encroacher; and

When the person being encroached on is simply seeking to vindicate a technical and unsubstantial right (i.e. common neighborhood "spats"), modern California Courts deny the injunction and allow the encroachment.

Absent the examples listed above, accurate surveys are a great way to determine boundary line location. The problem is that procuring a survey is expensive – costing many thousands of dollars. Furthermore, as exemplified above, ordering a survey does not guarantee that the property line dispute will be resolved because the Court weighs many factors when utilizing their highly discretionary standard.

Most people think that fences demarcate property lines, which is not always the case. The location of a fence is not determinative of how a case will be resolved because mere construction of a fence only creates rebuttable evidence of the true boundary line.

Cited California cases have found that mere construction of a fence does not create an easement or title to the land. California Courts are not hesitant to override existing fence lines and give land back to the non-encroaching neighbor even when the non-encroaching neighbor is unaware of the encroachment and the encroacher had cultivated, developed, and used the encroached land for ingress and egress for many years. Mesnick v Caton, 183 Cal. App. 3d 1248, 1261 (1986).

California Court decisions are unpredictable - BE CAREFUL! Don't waste time and money improving land that may not belong to you. Even though long standing fences may have divided your land from that of your neighbor and you have made the best use of the land and thereby "Grand-fathered" yourself into it; a favorable outcome is by no means guaranteed.

What about my neighbor's annoying overhanging tree?:

Contrary to "hidden" encroachments that adjacent landowners are unaware of because nothing visually separates their properties, a quite obvious and common legal dispute centers around overhanging trees.

Where the branches of a tree overhang, or its roots enter the land of another, the owner cannot take the overhanging fruit, nor can the owner enter on the other's land and cut down the tree without being liable for trespass. Under certain conditions, the owner may obtain a mandatory injunction, or possibly damages. An injunction is only available if the encroachment amounts to a legal "nuisance." Alternatively, the aggrieved owner may employ self-help and cut off the offending branches or roots at the boundary. Self help is constrained by the duty to act reasonably. In light of the self-help remedy, California Courts have been reluctant to award substantial damages.

A special rule applies where adjoining landowners maintain a hedge or line of trees on their boundary as a shelter or windbreak. In that case, the adjoining landowners are "tenants in common" of the trees and one who attempts to cut down the trees or remove their overhanging limbs may be enjoined as they are depriving the other of shelter.

This is one area of the law that the government doesn't get of "Scott free;" thus, if your property is damaged from trees or branches from neighboring government-owned property, the government is just as liable as the ordinary citizen.

Mediation - Good avenue to boundary dispute resolution:

Since the law in boundary line disputes is in a grey area, Real Estate attorneys should advise their clients to resolve boundary line disputes in some form of alternative dispute resolution before pursuing litigation in most cases. Mediation often provides the type of atmosphere the parties need to reach an amicable agreement.

The advantage of mediation, rather than litigation in this context, is that mediation gives the parties the ability to fashion creative solutions that, due to restrictions in the law, Court decisions simply cannot. A popular solution reached through mediation allows the encroaching party to continue their use, while also preserving and protecting the fee owner's ownership rights for the future. The attorneys at Hanley Law representing landowners in mediation sessions will work to develop a solution reduced to writing, which defines the rights and obligations of the parties, and hopefully restores and maintains the peace between neighboring landowners.

This article provided a brief glimpse into of the legal realities and complexities that face adjoining landowners engaged in real property boundary line disputes. There is no clear cut answer in these cases; therefore, the only way to protect your ownership interests is to hire a qualified Real Estate attorney.

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For a more detailed information about real property, please see Real Property - Evictions, Real Property - Foreclosure Investors, Real Property - Homestead Law, Real Property - Inheriting Property and Real Property - Tenancy Notices.

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If you have questions about boundary disputes, please do not hesitate to contact our San Jose attorney and licensed real estate broker today. Call us now for a free phone consultation at 408-293-0344 or contact us via e-mail by filling out the form on the Contacts page and a representative from our office will reply immediately.

More information: Contact Us, Elder Law, Estate Planning, Estate Planning - Protecting Your Assets, Probate, Real Property - Evictions, Real Property - Foreclosure Investors, Real Property - Homestead Law, Real Property - Inheriting Property, Real Property - Tenancy Notices, Daniel E. Hanley Biography