Newsletter:
Spring 1997: Boundary Disputes

By Michael J. Festa

Over the years I have advised clients in numerous turf wars regarding the location and placement of backyard fences. Two recent California District Court of Appeal cases have now fundamentally changed how we view such disputes.

Background: In general, there are three distinct legal theories applied to these backyard disputes: adverse possession; prescriptive easement; and agreed boundaries.

While it is against the law to trespass on another's property, if you continue to trespass for a long enough period of time (5 years in California) then you may have the legal right to claim ownership of the land (adverse possession) or the right to continue to use the land (prescriptive easement).

The origin of this law lies in the history of the "old west", when large parcels of land which had first been claimed by people went unused. Such "waste" was frowned upon by the courts. So, if someone else came on the land and used it continuously, the land would become theirs.

In today's society, adverse possession claims are very unusual. More often, when a person makes use of another's property, it is only of a small portion of that property, which usage may or may not be exclusive of any usage by the true owner. Such situations commonly arise because a fence, hedge or wall is erected on the wrong side of a recorded boundary line. Other situations involve building encroachments and the use of common driveways.

The theory of prescriptive easement thus evolved. Rather than becoming the owner of the disputed land, one merely acquired the right to continue to use it.

The third theory, agreed boundaries, arises where the neighbors simply agree, expressly or impliedly, to the placement of a boundary line.

Application: Under the above theories, record title of a disputed area has often been defeated by possession (which as the saying goes, is nine- tenths of the law). Boundary disputes among neighbors are common in densely populated urban areas where property owners build larger structures on existing lots within the confines of set back and sideyard zoning requirements.

In the past, although the outcome of these cases was always difficult to predict, it was not unusual for the occupying party to obtain an easement by prescription, allowing him or her to maintain use and possession of the disputed property.

New Law: This law has changed significantly in light of two 1996 cases: Silacci v. Abramson and Mehdizadeh v. Mincer, which together have eroded the theories of an "exclusive" prescriptive easement and of agreed boundaries, in what the courts term "simple backyard disputes".

The Silacci case involved a three-foot high picket fence which separated the adjoining landowners, but was not located on the true and correct boundary. The trial court awarded Abramson the exclusive use of the three- foot strip of Silacci's property for a "backyard garden area." The Court of Appeal reversed, and rejected the notion that Abramson should have the exclusive right to use the disputed property which, as a practical matter, completely prohibited the true owner (Silacci) from using his own property.

In Mehdizadeh, a chain link fence which had been installed more than 20 years earlier, was not located on the legal boundary between two properties. The disputed property involved an area of vegetation which was cared for by Mr. Mehdizadeh, and included a sprinkler system which was connected to his water supply.

Again, the trial court found in favor the user, Mr. Mehdizadeh. Again, the Court of Appeal reversed, and held that "when existing legal records provide a basis for fixing the boundary [as in a subdivision with recorded tracts and lots] there is no justification for inferring ... that the prior owners agreed to fix their common boundary at the location of the fence." The court added that the theory of agreed boundaries arose in an earlier time, "when surveys were notoriously inaccurate and the monuments and landmarks they described could not be located."

Conclusion: While the new cases tip the balance of power in favor of the record title owner of the disputed property, boundary disputes among neighbors are bound to continue. The increased tensions between the underlying and historic policies that favor possession versus the polices that favor record title will ensure it. As a practical matter, it remains imperative for the parties and their attorneys to work towards creative and amicable resolutions.