Facts: A fence existed for years and was considered the property line between adjacent parcels of property before the neighbor built permanent improvements on what they believed was their property. They do not obtain a survey or a permit for the improvements which are in need of repair or removal. The owner later conducts a survey and discovers these improvements are located on their side of the recorded property line.
Claim: The owner seeks to remove the improvements as encroachments claiming they are a public nuisance since they were built without permits, will be costly to remove and cannot be maintained as an easement.
Counterclaim: The neighbor claims they hold an equitable easement which does not interfere with the owner’s use of the property since they used the disputed portion of the property for decades and openly and unknowingly built across the legal boundary line.
Holding: A California appeals court holds an easement is not created by unknowingly building structures beyond the property line which need removal or repair since failing to obtain permits and not meeting construction standards creates a public nuisance which cannot be maintained as an easement regardless of the length of time involved. [Wang v. Peletta (2025) 112 CA5th 478]
Can a negligently encroaching land owner seek a prescriptive easement over the neighboring property?
Related Reading
Real Estate Property Management Chapter 41: Dangerous on-site and off-site activities
Real Estate Legal Aspects Chapter 17: Easement maintenance costs
