What constitutes a prescriptive easement?

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What constitutes a prescriptive easement?

Fences at my new property are very far from the actual property line. Can I just move them out or do my neighbors have claim on land? These fences were on the lot behind me which is empty (and technically landlocked). However there are no access issues as it is owned by the owners of the adjacent lot. For an unknown amount of time they have allowed people to park cars along the driveway to the back lot and in the back lot, which according to my deed and a survey, is mine. There have been no structures built by them in the area in question, just parking. Per my deed/title report there are no access easements. Is it within my right to move my fences closer to my actual property line?

Asked on April 10, 2011 under Real Estate Law, California

Answers:

S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You have every right to move them without any written caveat in your lease or a written agreement requiring you to allow access to that prortion of your property. However, the owner of the adjacent lot whose fences encroach on your property may claim that he has taken possession of this property through what is known as adverse possession. This means that the owner has acted "open and notoriously" in claiming ownership of that portion of the land which encroaches on your property. If the you and/or prior owner of your property knew about the encroachment and allowed it to continue despite it being on your property, the property can be deemed theirs under the law. The key is the length of the continued encroachment as each state is different. Most states are seven years.  I am not sure when you closed but normally, the title company will raise this issue and require affidavits from the neighbor whose property encroaches yours. Either way, move the fences to the property line and you should be fine.  


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