What if part of your house turns out to be on your neighbors property?

 

Title to your property is about what you own, for example, what are the dimensions of your property, and how you own it, Nolo *  The standard form title insurance policy in California is issued by the California Land Title Association (CLTA).  The CLTA policy specifically excludes coverage for encroachments by improvements on the insured property onto the adjacent land or for encroachments by a neighbor’s improvements on the insured land.  However, coverage may be provided by the purchase of special endorsements to the policy.  Thus, it would be necessary for the purchaser to specifically seek out an endorsement to cover potential encroachments (and pay the extra fee!).  On the other hand, there is coverage for both types of encroachments under the American Land Title Association (ALTA) policy.  The ALTA policy is less common, and more expensive.  Bay Area Real Estate Lawyers * Findlaw.com

Before a policy is issued, property owners also get a preliminary title report explaining what a search of the public records has turned up and what kind of coverage the title insurance company is willing to offer. Another frustration for many property owners is learning that “90% of the residential title issues aren’t covered by title insurance,”  Disputes over borders aren’t usually covered unless the property owner has paid for a survey and extra coverage Los Angeles Times – Limitations of Title Insurance  *

Title to property is usually transferred by means of a deed. In some cases title to or use of property can be acquired by merely occupying and using the property for an extended time. In colloquial parlance this can be thought of as “squatter’s rights.”  

A squatter can acquire ownership of a property by “adverse possession”, which is set out in the Code of Civil Procedure at § 325.

  • The first element of adverse possession is occupation of the property in a manner that is “open and notorious”, meaning under circumstances that give reasonable notice of the occupation to the true owner.
  • The possession and use must be continuous for a period of five years or longer.
  • The possession must be under a claim of ownership or right; in other words, contrary to the true owner’s claim.
  • And, finally, the claimant must pay the taxes on the property. A party who can establish all of these elements may prevail in a claim of ownership to the property.

A prescriptive easement does not require the payment of taxes except in the rare instance where the disputed property is separately assessed.

A prescriptive easement is one acquired by an adverse use for a certain period of time. But an easement is not ownership, and therefore an “exclusive prescriptive easement” was inherently contradictory because it amounted to giving a portion of Silacci’s land to Abramson without any rights remaining to Silcacci. This perverted the long-recognized distinctions in property law between ownership and use. For the most part, an easement, by definition, cannot be an exclusive useIt cannot exclude the true owner.   BrewerFirm.com Fence & Boundary Disputes  * 

 

Links, Resources, Bibliography

Nolo  Title Insurance

Adverse Possession  

Bay Area Real Estate Lawyers 

Los Angeles Times – Limitations of Title Insurance  

First American Title FAQ’s on Title Insurance 

Findlaw.com  

New York Times Disputed Driveways & Title Insurance  

Lawyers.com Disputes with neighbors over boundary lines 

BrewerFirm.com Fence & Boundary Disputes  includes case law examples

CA Real Estate Lawyers Blog  Easement determined by historical use 

 

California Law – Civil Procedure §325  

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

(1) Where it has been protected by a substantial enclosure.

(2) Where it has been usually cultivated or improved.

(b) In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.

 

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