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An issue that comes up often is the situation where there is a fence that was believed to be on the property line between two properties (property A and B) which is discovered to actually be on just one of the properties (A) and has the effect of fencing in a portion of one of the property owner’s property (A) thereby excluding that property owner (A) from access to a portion of his property. Sometimes when this issue comes up the two neighbors talk and resolve the issue by either moving the fence or agreeing that although the fence is not on the property division line, that the property division lines remain fully intact. In other instances, however, a dispute arises where property B, the property that is benefiting from having a portion of their neighbor’s property on their side of the fence, takes a position that they have accrued property rights in the fenced in portion of property A.

In California, this scenario invokes various legal issues including the doctrines of boundary line by agreement, adverse possession, and prescriptive easements, to name a few. In evaluating this situation, the inquiry is not simply how long the fence has been up. Certainly a fence that has been in place for a long period of time is one piece of evidence as to whether or not certain property rights have accrued in favor of property owner B. However, the inquiry would not end there. In California, other evidentary issues need to be determined such as whether or not the boundary line between the two properties was uncertain at the time the fence was first built; whether the fence was intended to delineate a new boundary line between the two properties; whether the fence was intentionally erected by the owner of property B, and whether the neighboring property owner being burdened by the fence (property owner A) knew that a portion of his or her property was fenced in at the time that the fence was built or any time thereafter.

I have often come across these types of issues and have represented clients in Oakland, Walnut Creek, and in the East Bay, California, in dealing with resolving the issue of a property that is fenced in. If you have questions, or need representation by a California attorney, involving a dispute between neighbors, please feel free to contact me to arrange for a consultation at (510) 465-0025.

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