It may be true that good fences may make good neighbors, as the poet Robert Frost declared. But a bad fence, a shared driveway and disgruntled neighbors can be a recipe for litigation, as a recent appellate court decision demonstrates.

Ali Madani and Michael Rabinowitz were next-door neighbors in Woodland Hills whose disagreement was the subject of the ruling (Madani v. Rabinowitz.)

Rabinowitz had lived there since 1979. Madani bought his home in 2000, but rented it out until he began living there in 2015.

The two homes, along with two other properties, shared a single common driveway, which all four neighbors had the right to use for ingress and egress.

Shortly after moving in, Madani asked Rabinowitz to move some of his vehicles off the portion of the driveway on Madani’s land so Madani could repair the driveway.

Rabinowitz, who had 15 cars on his property when the dispute ended up in court, told Madani that he had been parking his vehicles on the driveway for years, and felt he had the right to continue to do so.

Madani sent letters to his neighbor, formally asking him to move the vehicles. Rabinwitz wrote back that he was “unwilling to forfeit [his] right to park” on the driveway.

Madani then had his property surveyed, and discovered that a fence owned by Rabinowitz encroached two feet onto his property. In March of 2016 he sued Rabinowitz in Los Angeles Superior Court for trespass and nuisance.

In his response, Rabinowitz argued that Madani’s claims were barred by the statute of limitations.

The trial court ruled in Madani’s favor, whereupon Rabinowitz appealed.

He again argued that Madani’s trespass and private nuisance claims were barred by the statute of limitations, which requires that such claims must be brought within three years.

Rabinowitz pointed out that the fence had been built decades earlier, and he had been parking his vehicles on the driveway for almost as long.

The kind of claims Madani made might or might not be barred by the statute of limitations, the appellate justices noted, depending on “whether the wrongdoing is permanent or continuing in nature.”

With a permanent nuisance (defined as a permanent injury to a property) the three-year period begins when the nuisance is created. After three years have passed, any claim for damages is barred.

A “continuing nuisance,” however, is a series of successive injuries. Each of these triggers a new three-year period during which a claim can be made.

So, every time Rabinowitz parked one of his cars on Madani’s portion of the driveway, the statute of limitations began to run again.

Because the vehicles were a continuing nuisance, Madani’s claims were not barred, the higher court said.

As for the fence, which near its end encroached a couple of feet onto Madani’s land, Rabinowitz argued that it had been there for decades, and thus certainly was protected by the statute of limitations.

The justices noted that Rabinowitz “disregarded the inconvenient fact” that the original fence had been replaced with a new one in 2015, only a year before the lawsuit was filed.

More important, they said, were other issues courts must consider when reviewing a claim of trespass or nuisance and deciding whether it is permanent or continuing.

One is if the circumstances of a structure’s construction indicate “an intention that the trespass shall be permanent.”

Another is whether the nuisance or trespass “can be discontinued or abated.” If it “can be remedied at a reasonable cost by reasonable means,” then it is a continuing injury that is not necessarily barred by the statute of limitations.

Rabinowitz acknowledged that the encroaching portion of the fence could be relocated at a cost of a few thousand dollars. That expense “is not sufficient…to regard the fence as a permanent installation,” the appellate court said.

This criterion is especially important, the justices said, in light of today’s home values, when “even modest properties represent small fortunes.”

Madani had also asked that Rabinowitz be ordered to pay him for parking the cars. The trial judge determined that Madani had not provided sufficient evidence of the value of the use of the driveway.

The appellate court affirmed the rulings of the lower court, and ordered each party to bear their own costs on appeal.

By Laurie Murphy