Last Faoro & Whitehorn A Professional Law Corporation

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Article: Boundary Disputes


This article serves to discuss Last & Faoro‘s retention to pursue or defend “boundary” claims or rights. This article is not intended to give the reader legal advice on how to pursue or defend their interests. Many factors, including but not limited to: (a) historical use, (b) easements, (c) licenses, or, (d) nuisance law, may have a significant impact on the assessment and enforcement of adjoining property owner rights. Therefore, this article is not intended to substitute for the advice of an attorney as to a specific problem by and between adjoining property owners. If the reader has a specific legal question or needs legal advice, the reader should contact an attorney.

We often represent clients involved in a dispute with an adjoining neighbor over shared boundaries. For example, after a survey is conducted, adjoining property owners learn that a long standing fence or retaining wall believed to be located on the boundary between two properties is actually encroaching on one side of the property line by feet or yards. Last & Faoro is regularly retained to enforce numerous property rights, including but not limited to exercising dominion and control over disputed property; abating nuisances; realignment of fences to reflect the actual property line; and, the enforcement of easement rights.

Reoccurring circumstances for which Last & Faoro is retained generally involves the growth of a large tree situated on or near the boundary between two properties. Last & Faoro is regularly consulted to address issues of: (a) pruning; (b) nuisance abatement; (c) damages to decks, swimming pools and foundations caused by large trees and their associated aggressive root systems.


A homeowner with an encroaching fence may look to the agreed boundary doctrine as a possible legal solution. It must be understood, however, that the agreed boundary doctrine is the exception to the rule. The general rule is that the recorded legal description for a property determines its boundaries. The law favors upholding the boundary described in a deed, as opposed to the present location of a fence or a wall, particularly where most boundaries can be accurately verified by a survey of the property’s legal description.

In limited circumstances, the agreed boundary doctrine may be used to establish that a boundary is marked by the location of a fence, hedge, or wall, rather than the boundary defined in a recorded property instrument. For the agreed boundary doctrine to apply, there must be: (1) uncertainty as to true boundary line; (2) an agreement between the adjoining neighbors fixing the line; and, (3) acceptance or acquiescence to the fixed line for at least 5 years or under circumstances where substantial loss would be caused by a change of the location. In recent cases, California courts have made clear that there must be an actual agreement between the neighbors to fix the boundary-acquiescence is not enough. Just because a fence was put up and has been there for many years without complaint does not mean that the “agreed boundary doctrine” will establish that the location of the fence is the property line.


On rare occasion, adverse possession may be used to acquire title to land involving an encroaching fence. By adverse possession, a person obtains actual ownership of real property. To obtain title by adverse possession requires possession of the property for five years that is both hostile to the record owner and exclusive. In other words, the record owner cannot consent or acquiesce to the exclusive possession-otherwise, it is no longer hostile. Importantly, a person attempting to obtain title to property by adverse possession must pay taxes on that property. It is the requirement/element to pay taxes that generally prohibits a party from successfully advancing an “adverse possession” cause of action.


Another method by which one property owner may require an interest, dominion or control over a neighbor’s land is by pursuing a “prescriptive easement” claim.

An easement gives one property owner the right to use the land owned by another. A fence, gate, roadway or property access point, on the other side of the property line, has provided much fuel for adjoining land owner disputes. The real estate attorneys at Last & Faoro have successfully resolved these types of disputes by advocating “prescriptive easement” rights.

A prescriptive easement is a type of easement that can be obtained in a manner similar to adverse possession. Like adverse possession, a prescriptive easement requires possession and use of property for five years, in a manner hostile to the recorded owner. Unlike adverse possession, in order to establish a prescriptive easement one is not required to pay property taxes. Consequently, it is easier to demonstrate that property rights were acquired by prescriptive easement than by adverse possession.

A significant distinction between a claim for prescriptive easement and ownership by adverse possession is that, to have a successful claim for a prescriptive easement, the possession cannot be exclusive. And, because fences or walls typically exclude others from accessing or using the subject property, it is difficult to acquire a prescriptive easement over land affected by a misplaced fence. Thus, it generally is the case that a neighbor with an encroaching fence will not obtain a prescriptive easement that would otherwise limit the true owner’s use of his or her property.


Recent California cases have suggested that a neighbor with an encroaching fence or wall may obtain an “equitable” easement where a prescriptive easement would not otherwise be found. By applying the legal doctrine of relative hardship, a Trial Judge may create an “equitable easement” preventing the true owner from removing an encroaching fence or wall, or other encroaching structures. Under this legal doctrine, the Trial Judge balances the interests of the true owner of property against the interests of the owner of the encroaching structure.

The requirements to be satisfied to successfully establish a relative hardship claim are: (1) the encroachment must be innocent (in other words, the encroacher did not encroach willfully or negligently); (2) the true owner will not suffer irreparable injury; and, (3) the hardship the to encroacher, to remove the encroaching structures, will be greatly disproportionate to the hardship that the record owner would suffer (for example, the cost of removing the encroachments would greatly exceed the inconvenience to the record owner of keeping the encroaching structure).

Where other legal doctrines would fail, such as the agreed boundary doctrine, adverse possession, and prescriptive easement, a neighbor with an encroaching fence may look to the relative hardship doctrine to stop the record owner from removing the fence.



All to often, boundary disputes arise long after a fence, tree, or structure extends over the property line. As is our recommendation when assisting purchasers, the procurement of a survey is best served before a property is purchased so as to better understand the benefits and burdens of a particular parcel of land, ideally before escrow closes. Of course, if a survey was not secured, through effective legal guidance, it may not be too late to maintain or protect property rights or a parcel’s boundary.

The foregoing article is intended only to provide a general overview of some of the issues that may present in matters involving boundary disputes. The article is not intended to contain legal advice, is not intended to discuss or address any specific situation or problem and should not be relied on in making any legal decisions. If you have a specific legal question or need legal advice, you should contact a qualified attorney.

Dennis L. Faoro is a partner at Last & Faoro specializing in Real Estate and Construction Law for over 25 years, assisting property owners, developers, contractors and Realtors in real estate and construction matters. He can be reached at 650-696-8350, or by email at [email protected].

Dennis L. Faoro Last & Faoro 177 Bovet Road Suite 550 San Mateo, CA 94402 dlfao[email protected] Tel: 650-696-8350 Fax: (650) 696-8365