Good fences make good neighbors, according to the poet Robert Frost. But what if that nice fence between you and your neighbor turns out to be nowhere near the actual property line between the two properties?

That can be a recipe for litigation, as shown by a dispute recently decided by the California Court of Appeal (Romano v Shih.)

In 1941, the Cutler family purchased two adjacent properties in Sierra Madre. One had a home on it, while the other lot was vacant.

More than four decades later, in 1985, the Cutlers decided to adjust the boundary line between the two properties, increasing one lot from 50 to 58 feet wide while reducing the other from 63 to 55 feet wide, to make more room for a driveway and fence line.

The city approved the variance, and the Cutlers hired a registered civil engineer to prepare a survey and new legal description of the two properties, which he did.

However, for reasons that remain unclear, there is no evidence that the new survey and legal description were approved by the city. The lot line adjustment was not recorded, and the city did not issue a certificate of compliance.

The Cutlers proceeded as if the new legal description was operative, and built a home on the vacant lot, with a six-foot-tall block wall on the line the surveyor had designated. The city issued a Notice of Completion for the new home, describing it as being on a 63-foot wide lot, not the 55-foot width proposed in the application for a variance.

The new home was sold in 1986, resold 20 years later, and sold a third time in April of 2014 to the Romero family. All sale documents described the property as being 63 feet wide.

The Romeros signed a California Residential Purchase Agreement, whose wording included a statement that “Buyer acknowledges that the square footage of the Property has not been measured by Seller,” and that “Buyer is buying the Property AS IS, . . . WITH ALL FAULTS AND LIMITATIONS.”

Less than three months later, the home originally occupied by the Cutlers was sold to Tun-Jen Ko and Li-Chuan Shih. The legal description of the home did not reflect the lot line adjustment proposed in 1985.

The Seller Property Questionnaire, delivered to the Shih family on June 24, 2014, said there were no “easements, encroachments or boundary disputes” related to the property.

The Shihs signed a Buyer’s Inspection Advisory acknowledging that “The physical condition of the land and improvements being purchased is not guaranteed by either Seller or Brokers.” In capital letters, it also stated that “YOU ARE ADVISED TO CONDUCT INVESTIGATIONS OF THE ENTIRE PROPERTY.”

It pointed out that “Fences, hedges, walls, retaining walls and other natural or constructed barriers or markers do not necessarily identify true Property boundaries,” and that these are best verified by a surveyor, civil engineer, or other professional.

In 2015, preparing to do some work on their home, the Romeros hired a licensed surveyor who informed them that the Shihs’ property “encroached” on theirs. The encroachment was a strip of land 8.25 feet wide by more than 157 feet long, for a total of nearly 1,300 square feet – about 13% of what the advertisement that first attracted to the home said was their entire lot.

This strip of land included the block wall between the properties, a portion of the Shih family’s driveway, and a planter in front of their home.

The Romeros asked the Shihs to remove the encroachments and share the cost of building a new fence on the property line. The Shihs refused.

The Romeros filed a lawsuit in Los Angeles Superior Court in February of 2016, asking the court to order the Shihs to remove the encroachments and for damages of $300,000.

The Shihs filed a cross-complaint, asking the court to grant them an easement to use the contested 1,300 square feet of land, and for “quiet title,” an order declaring them to be the owner of the land.

They argued that an “implied easement” had been created by the acts of the prior owners. They also pointed to the “obvious and permanent use” of the land to the “reasonable necessity” of their use of the footage. They pointed out that without it their driveway would be almost unusably narrow, and a window air conditioner would actually stick over the property line.

On September 20, 2020, the trial court ruled in favor of the Shihs, determining that “the continued encroachment onto the disputed strip of land is reasonably necessary” for their use of the home. It granted them an easement to use the disputed strip of land for a driveway, planter, and fence.

The court found that the Shihs were “innocent parties with no knowledge of the encroachments,” while the Romeros “would not suffer any irreparable harm from such continued encroachment.”

The Romeros appealed, arguing that the trial court had exceeded its authority in granting the easement.

The appellate court disagreed.

There are rules limiting an “exclusive prescriptive easement,” which effectively prohibits the owner from making use of a parcel of land, it said. But this “has no application to a simple backyard dispute.”

The courts have the power to grant an encroacher an “equitable easement” under certain limited circumstances, it said.

The trespass must be “innocent” rather than “willful or negligent.” The property owner must not be “irreparably injured” by the easement. And the hardship to the trespasser from losing access to the land must be “greatly disproportionate” to the hardship suffered by the owner of the land by the continued encroachment.

Here the Shihs would be severely inconvenienced without the easement, ending up with a nearly useless driveway and other problems. The Romeros were already able to comfortably use their home; adding the 1,300 square feet to their property would simply allow them to expand their garden.

The appellate court affirmed the issuance to the Shihs of an implied easement and awarded them their costs on appeal.

By Robert C. Weiss