We should always be concerned about “encroachments”; whether the seller’s use of those five square feet of the neighbor’s property for a garden is a problem?  Can we expect that the neighbor will continue to permit it?  It is a problem and we cannot expect the permissive use to continue.

If you’re selling a property with a driveway across what appears to be a neighbor’s lot, or if you’ve always had an “agreement” with the neighbor be careful.  There’s a big legal difference between an easement and what’s called an encroachment.

The seller must establish the following:
• The use was visible, open, notorious (i.e. that the neighbor knows about it)
• There was never expressed permission
• The use was continuous for at least 21 years.

If the seller cannot establish these elements the use may constitute an encroachment over the boundary line and a trespass.  Never assume that a neighbor will continue to allow the encroachment. Unless a prescriptive easement is legally confirmed, and recorded, the neighbor could always file a complaint, force the buyer to remove the encroachment and bar your client from crossing the actual property boundary line. Of course, subject to consultation with an attorney, there are some options:

• Either the seller, if the issue is discovered prior to close of escrow, or the new buyer, if after close, could negotiate a settlement or title in return for compensation.

• Or, they could agree that an easement will never be granted, but that the neighbor will give revocable permissions (a “license”) to use the property.  In any event, once the issue is raised, the parties must consult counsel and resolve it before the close of escrow.

Whenever you suspect you may be over the property line, do your homework when considering a sale.  If you’re granting a neighbor or someone else the use of a portion of your lot, however small, consider getting an agreement in writing with simple terms that will ensure your ownership.