What can I do if I just bought a house and my neighbor’s driveway and fence are 5 feet into my property?

UPDATED: Sep 30, 2022

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What can I do if I just bought a house and my neighbor’s driveway and fence are 5 feet into my property?

I found my property markers as per the survey map, I know for a fact they are my markers, I measured carefully. I called the surveyor who did the survey 6 years ago and he also remembers finding those markers in my neighbor’s driveway. Is there anything that I can do to protect them from gaining a prescriptive easement? How can I protect my land from?

Asked on December 17, 2015 under Real Estate Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

A prescriptive easement, in your state, can be earned by five years continuous (i.e. regular--doesn't have to be every single day), "open and notorious" (i.e. obvious) use that is "hostile" to your possession--which basically just means without your permission. The letter your realtor suggests may help prevent an easement if one has not accrued already, but if the neighbor has already qualified for one, will not make a difference. You are advised to consult in person and detail with a real estate attorney about this situation.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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