Easements and Adverse Possession


“What you see is what you get.” Right? If it were only that simple.
You buy a property, expecting it to be free of any easements or boundary issues. You come to learn later that
your property’s previous owner habitually allowed the neighbor to drive her car across what is now your property, or that the neighbor’s fence is actually built on your property. These types of boundary issues are not uncommon in the San Francisco Bay area. Boundary disputes have become more prevalent as neighborhoods change and new structures are built. While the following explanation delves into legal concepts, you should also note that you may have additional recourse through your title insurance company.

Boundary Disputes

Boundary disputes can cause stress and animosity between all parties involved. The boundary disputes that we see most often in San Francisco include encroaching fences, overhangs, patios, driveways, plants or trees.

If you, as the landowner, do not object promptly to an encroachment, you may lose control of that part of your property. To resolve boundary disputes, it’s sometimes necessary for a land surveyor or an experienced title officer to help you determine where your land officially begins and ends. A survey is a relatively inexpensive way to determine boundary lines and can help property owners resolve boundary disputes without going to court. But if a survey is inconclusive or does not lead to an amicable resolution, you should contact an experienced attorney to represent your legal rights.

Boundary Lines

Let’s say you purchase Property A. You decide, very astutely, to survey Property A. The survey reveals that your neighbor’s fence encroaches on your property by 6 inches. So, where is the legal boundary line? This question has plagued the courts for years, but there are two doctrines that may help determine the official boundary line:

  1. Agreed Boundary Line: Also known as a boundary reached through acquiescence, this legal doctrine requires: (a) initial uncertainty regarding the location of the boundary, (b) an oral or written agreement by both owners to fix the line, and (c) acceptance of the fixed boundary for a period of 5 years (in California) or detrimental reliance on it (usually by investing money or labor). In other words, if you and your neighbor can come to an amicable agreement and stick to it for 5 years, or if construction occurs in reliance upon the agreement, then the fence in fact becomes the legal line between Property A and the neighbor’s property. If the previous owner of Property A had already reached an agreement such as this, you would be bound by it.
  2. Adverse Possession: This doctrine allows someone else to acquire your land if his possession of your land is obvious, non-permissive and continuous for a period of five years. In California, this person must also pay taxes on the property for those five years. Land acquired by adverse possession binds present and future owners. Because adverse possession is a very complicated area of the law, it’s important to contact a knowledgeable real estate attorney to determine whether your property has been adversely possessed.


An easement essentially gives one person (the easement holder) the right to use another person’s property for a particular use. The most common example of an easement is a “right of way” across someone else’s land. Let’s say that you have acquired an easement–the right to use a dirt path on neighbor N’s land to get to your own land. There are four major types of easements: express easements, easements implied from prior use, easements by necessity, and easements by prescription.

Express Easements

If your easement to use the dirt path is an express easement, it will have been granted to you through a deed or other written instrument. Express easements granted verbally have been upheld by courts in situations where they have been reasonably and detrimentally relied upon (usually by investing money or labor). Express easements are usually granted in exchange for money, but do not have to be.

Easement Implied from Prior Use

If your easement is one implied from prior use, it should fall within the following scenario: N splits his land into two parcels and sells one to you. Before the split, however, he had used the dirt road across what is now his parcel to get to what is now your parcel. You will have an easement implied from prior use if N’s prior use of the dirt path was not merely temporary, such prior use was obvious, and an easement is reasonably necessary for you to enjoy your property (see Civil Code section 1104).

Easement by Necessity

If your easement is an easement by necessity, it would result from a similar scenario of N owning both your parcel and his, and then splitting them into two before selling a parcel to you. However, the easement must be strictly necessary for you to access your property. In other words, without this easement, there would be no way to get to your property without a private jet or helicopter because it is landlocked.

Easement by Prescription

If your easement is an easement by prescription, also known as a prescriptive easement, you will have satisfied the following elements to acquire such easement: (1) you utilized the path in a manner that would provide reasonable notice to N; (2) you used and the path continuously for a period of five years; and (3) you used the path hostile manner (or, in other words, you were not given permission by N).

Limitations on Easements

Even though an you may have the right to cross the dirt path over N’s land, it by no means gives you any right to possession of that path. Courts also have prevented easement holders from abusing their easements (an example: inviting friends to have a barbeque on the path). On the other hand, the easement renders N powerless over the path in certain ways. N cannot build over it or fence it off, as these actions would interfere with your easement.

Why are Easements Problematic?

Many landowners are disappointed to learn that most easements can be permanent: they pass on to the new owners whenever there is a transfer of property. From a landowner’s point of view, this means that the property is worth less than it would otherwise be. This is the reason for the phrase “burdened by an easement.”
If you think a neighbor may have an easement across your land, or if you think you may have an easement across your neighbor’s, you should consult an attorney to determine your rights. The attorneys at Chan Legal Group can help you resolve both your easement disputes and your boundary disputes. Contact us for a free initial 30-minute phone or email consultation.


The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult a San Francisco real estate attorney for advice regarding your own situation.