Encroachments & Property Line Disputes

Property line disputes can and do arise as between adjoining land owners.   When a building or other structure is constructed onto adjoining land, or into its airspace without permission or consent, the infringement is referred to as an Encroachment.  The encroachment may constitute a trespass or a nuisance.  Should the encroachment actually rest on the adjoining land, it would constitute a permanent trespass.  See Rankin v. DeBare, (1928) 205 Cal. 639, 641.  When the encroachment intrudes into the airspace on the adjacent property, the encroachment may constitute a nuisance when said encroachment infringes upon the owner’s right to a peaceful use and enjoyment.  See Barnes v. Berendes, (1902) 139 Cal. 32, 39; see also Kafka v. Bozio, (1923) 191 Cal. 746, 750.  Thus, a party bringing an encroachment action should consider an action for trespass and/or nuisance along with a claim for declaratory relief and injunctive relief.  An owner of an easement may also seek relief and protection against the interference or encroachment on the easement.  See City of Dunsmuir v. Silva, (1957) 154 Cal. App. 2d 825, 827.

Permanent v. Temporary Encroachments – California courts distinguish permanent v. temporary structures as follows: “A permanent structure….has been defined as one which may not be readily remedied, removed, or abated at a reasonable expense or one of a durable character evidently intended to last indefinitely, costing as much to alter as to build it in the first instance, while, if the structure causing injury can easily be changed or repaired at reasonable expense, it is a temporary structure.”  See Bertram v. Orlando, (1951) 102 Cal. App. 2d 506, 508.

Balancing of Hardships – California courts use the “balancing of hardship” test when considering whether or not to issue an injunction in an encroachment action.  See Scheble v. Nell, (1962) 200 Cal. App. 2d 435, 438.  California Courts will apply the test by weighing the following factors: (1) the defendant encroacher must be innocent (i.e., the encroachment must not be willful and “perhaps not the result of defendant’s negligence”), (2) unless the rights of the public would be harmed, the injunction should be granted if the plaintiff “will suffer irreparable injury,” and (3) the hardship to the defendant encroacher from granting the injunction “must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.  See Hirshfield v. Schwartz, (2001) 91 Cal. App. 4th 749, 759.

Trees – Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another. See Cal. Civ. Code § 833.  Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common. See Cal. Civ. Code § 834.  To the extent that limbs or roots of a tree extend upon an adjoining landowner’s property, the latter may remove them, but only to the boundary line.  See Bonde v. Bishop, (1952) 112 Cal. App. 2d 1, 5.  Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common. As such, neither owner “is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.”  See Kallis v. Sones, (2012) 208 Cal. App. 4th 1274, 1278.

Division Fences – Adjacent landowners are mutually bound equally to maintain: (1) The boundaries and monuments between them; and (2) The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter. See Cal. Civ. Code § 841.

Spite Fences – Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance.  See Cal. Civ. Code § 841.4


If you have an encroachment or property line dispute, contact one of our Los Angeles Real Estate Attorneys today for a free consultation and case evaluation.