What Can I Do About a Stairway Encroaching On and Blocking Access to My Property?
Full Question:
Answer:
It may be possible to alert the neighbor to the encroachment with a notice or enter into an agreement for an easement. A quiet title or trespass to try title action is the method of determining title to lands, including the boundaries of that land. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act, such as removing a structure. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.
In the case of an encroachment, a plaintiff may be awarded the fair value of the property rather than have the structure removed. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
The laws of adverse possession allow a person to obtain title to land by simply using the land for a period of time specified by state law. For example, a neighboring property owner may have built a fence, placing it several feet inward on his property. If a person knows that a fence is on his land, but do not dispute its placement, title to that portion of the property could be lost. The intruder's use of the land must be in the open for everyone to see. Title to land is acquired by adverse possession as a result of the lapse of the statute of limitations for ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.
In order that adverse possession ripen into legal title, non-permissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough.
While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in bankruptcy.
In California, adverse possession requires five years of continued use which is "open and notorious" and "adverse" to the owner's interest. The maintenance and upkeep and improvement of the property is required and for the five years of use the property taxes must be paid for the property being adversely possessed. Property that is occupied with the consent of the owners is not considered a hostile claim. Merely sending the possessor a note granting permission to be there will usually be enough to defeat a claim of adverse possession.
Typically, a survey is done when selling a property, and the cost may be borne by the seller or buyer. It is possible the court would find the seller does not have a legal obligation to pay for a survey, so it may be a matter of negotiation between the parties. We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you consult a local attorney who can review all the facts and documents involved.
The following is a California statute:
325.
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: First--Where it has been protected by a substantial inclosure. Second--Where it has been usually cultivated or improved. Provided, however, that in no case shall adverse possession be considered established under the provision of any section or sections 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 paid all the taxes, State, county, or municipal, which have been levied and assessed upon such land.