Can we construct a fence on our property between our home and our neighbor’s that was previously unfenced?

We’ve lived in our home for 12 years and want to construct a fence just inside the property line between us and our next door neighbor. This line has been surveyed. We just received a letter from her lawyer requesting that we “cease and desist to erect a fence or other boundary which would interfere with her legal easement rights, pending resolution of this issue”. She claims that she has a legal right to use our property under the legal doctrine of prescriptive easements. Do her claims have any merit? Do we need to hire a lawyer?

Asked on July 16, 2012 under Real Estate Law, California


Cameron Norris, Esq. / Law Office of Gary W. Norris

Answered 8 years ago | Contributor

An easement granted by prescription is basically a legal right to use someone else's property because of use over time--and it has to meet certain requirements including use for a number of years.

The neighbor must have crossed over your property for YEARS and now you putting up a fence would interfere with the continuation of this use.  Their claims may have merit, they may not.  You also may be able to make some arrangement like a gate for them to lock/unlock and pass through that makes everyone happy. 

You should consult an attorney.  If you are in the Ventura County area our office would be able to represent you in this matter.

Best of luck.

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