ISSUE RECENT COURT DECISIONS HAVE II0H DRAMATICALLY ALTERED THE FeHCe TERMS OF BOUNDARY DISPUTE BY MARK L. SHAREe LITIGATION hen Robert Frost’s neighbortold to the use of the disputed property, and the The typical boundary-dispute lawsuit, in him “good fences make good other having record title. In the past, record which either neighbor may be the plaintiff, t neighbors,’ he probablymeanta title over a disputed area has often been involves a fairly straightforward quiet title well-built fence on a true bound- defeated by possession, which, as thesaying claim by the neighbor with record title, ary line. Even small deviations goes, is nine-tenths of the law. But a pair of because the law presumes this personto be between a fence and a true recentdecisions has now precipitously tilted in possession of the land described in the 1 boundary line can engender vig- the playing field in favorof theneighbor with deed. To achieve the goal of exclusive useof orous disputes. These disputes commonly record title, the disputed property, a neighbor in posses- arise because a fence, hedge, or wall is After Silacci v. Adamson~and Mehdizadeh sion must prevail on the more problematic 7 erected on the wrong side of a recorded v. Mincer, neighbors in possession must claims of adverse possession, prescriptive 5 boundary line, and fences tend to confer prove either that they have paid i-cal property easement, or agreed boundary. exclusive possession tu the neighbors on taxes on the disputed property or that there Not surprisingly, thereare parallels among either side. Years pass, a sale or new con- was uncertainty as to the location of the true these three legal theories. The doctrines of struction is imminent, a survey is made, and boundary. As a practical matter, however, adverse possession and prescriptive ease- then, the neighbor with record title sues to neighbors in possession of disputed prop- ment put the claimant to four daunting tests: recover possession ofthe now-disputed land, erty never pay the taxes on it, and a true The adverse claimant must have held pos- Such boundary disputes among neighbors boundary is rarely uncertain since it can be session 1) for five consecutive years, 2) in a have increased in the Los Angeles area as ascertained by a survey. As a result, the manner that is “open andnotorious,” 3) under property owners build ever larger structures requirements of these cases would appearto “a claim of title,” and 4) in a manner that is 6 on existing lots within the confines ofrequired be impossible to meet. Although these opin- “hostile to the true owner.” setbacks from the boundaries. ions thus seem to herald an endto boundary- The outcomein these cases is difficult to dispute litigation, resourceful practitioners Mark L. Share is an attorney wit/i Dc Castro, West, predict. Both sides feel justified in their posi- can still develop strategies that may provide C/iodoroii’, GlicAfrld & Miss, Inc. in Westwood. tions, oneneighbor having grown accustomed relieffor the neighbor in possession. 310-478-254] 30 LOS ANGELES LAWYER / JANUARY 1997 Payment ofproperty taxes has long been the advem-se claimant did not need to have of appeal reversed. al-I additional touchstone in adverse posses- paid property taxes.°’Asa leading real prop- The Silacci court focused on the basic sion claims. For more than a century, the erty treatise states: “In some cases the useis difference between adverse possession legislature has required that claimants sufficient to establish either atitle or an ease- (which confers title to disputed property) attempting to obtain title to land by adverse ment, but the possessor can only acquit-c an and prescriptive easement (which confers possession show that they “have paid all easement because he did not pny the taxes as “merely” a right of use). The court wasboth- taxes,.”~~In this context, “all taxes” means required for adverse possession.” ered that an exclusive easement blurs the taxes for each of thefive consecutive years of In Siiacci, however, thecourt ruled that an distinction, because it essentially gives away easement cannot be used to effectively obtain the title holders’ “land completely, without possession necessary to establish title by 3 adverse possession. The typical adverse ownership. That ruling has made the pre- reservation.” Onthe other hai,d,the remedy claimant in a boundarydispute—even ifall of scriptive—easement doctrine inapplicable to of an exclusive easement has long been dis- the elements regarding possession areestab- boundary disputes among privatelandowners. cussed in case law and treatises, and was lished—cannot prove payment of taxes, The case involved a fence dispute between granted in at least one reported case, Otay 1 because taxes areassessed and paid accoid- residential neighbors. The Abramsons’back WaterDistnictv. Beckzeith.’ Thecourt limited ing to the record title. fence was on land included in Silacci’s deed, Otay Water IJi.sta-ict “to its difficult and pecu- Traditionally, the difficulty of establish- and Silacci sued to i-ecover thedisputed land. liar facts” involving the public interest and ing au adverse possession claim hasdone lit- Not only hadthe live-yearprescriptive period reversed the trial court: “An exclusive pre- tle to discourage litigation of boundary dis- apparently passed, but five owners prior to scriptive easement is, nonetheless, a very putes. Neighbors in possession have been Silacci hadfailed to file a lawsuit challenging unusual interest in land. The notion of an able to advance their goal ofexclusive use of the tiespass, although threehad complained. exclusive prescriptive easement, which as a a neighbor’s land through prescriptive ease- With the requirements of hostile, continu- practical matter completely prohibits the true ments. Since an easement refers to a right to ous, and exclnsiveusefor the statutory period owner from using his land, has no application 8 use property of anothei; it is something of a met, the trial court awarded Abramson the to a simple back yarddispute like this one-”” stretch to use that claim to resolve a bound- exclusive use of Silacci’sproperty for a “back- With that language, possession, evenwhen no ary dispute, in which both sides want title yard garden area.” legal action is taken by numerous record and exclusive use. The courts accordingly That, according to the conventional wis- owners overa period of years exceeding the recognizethat when the useto be established dom of thereal property treatise, would nor- statute of limitations, was subordinated to is exclusive—such as in a boundary dispute— mally have been the end of the matter: “A record title and the tax collector. As Silacci a prescoptive easement amounts to title to the review of the decisions confirms that any concludes, if theAbramsons had paid prop- disputed property.” case involving a prescriptive right is won or erty taxes, then they would have an adverse The advantage of seeking an exclusive lost in the trial court, and that an appeal is gen- possession claim—not an exclusive-pre- 7 prescriptive easement was that, until Silacci, erally oflittle value.” Nonetheless, the court scriptive-easement claim—and so the case was remanded to the trial court to determine whetherthose taxes had beenpaid. Bearing the Cost of Litigation Silacci reasoned that easements differ t sonicpoint in a boundary dispute, particularly when it comes time to pay, the parties fundamentally from fee ownership. Holders will probably remember their title pol,cies. Although material encroachments are unde- of feetitle have the entire bundle of sticks of A niably defects in title, -title policies generally exclude boundary/encroachment disputes property ownership, thebenefits and the bur- from their coverage, The California Land Title Association (CLTA) Standard Policy Form gener- dens. To acquire a fee inte,’est by adverse ally nsures only against matters of record title, which do not include unrecorded easements and possession, onemust haveassumed thebur- encroachments. For a substantially higherfee, aproperty owner may obtain extended coverage dens, including payment of taxes, In contrast, for un,’ecorded defects under a CLTA policy or throughan American Land Title Association Loan the owner of an easement, like a lessee, lacks Policy; but again, if the insLirer discoversa boundary dispute upon conductir,g a sui’vey, that dis- some benefits and may be relieved of some pute is going to be specifically excluded from coverage. burdens, including the payment of taxes. Another source of coverage is a general liability insurance policy. if one neighbor sues another neighborfor damages, such as on a trespass or nuisance theory,’ based on the uncon- There was to the Silacci court something sented use of the disputed land, the homeowners’ policies may covereither neighbor’s costs of unseemly, however, when by a prescriptive 2 defense (which may include proving title). easement the advei-se claimant seeks all the Finally, once title is established, there nay remain the proble,’n of what to do about any improve- sticks conferring benefits without having ments on the disputed property that belong to the losing party. If they are insubstantial, andthe accepted those that bear the bu,’dens. losing neighbor does not remove them, the prevailing neighbor can seek damages for the costs Any doubt as to whether the Second of removal, If the improvements are substantial, either party may wish to obtain an injunction District Court of Appeal would follow the authorizing their maintenance or compelling