A person can establish an easement to use a portion of another person’s property, using the other person’s property that way, openly and obviously, adversely without permission, for at least five years. Neither the user nor the owner need to know that the user does not own and does not have permission to use the owner’s property. This happens in cases where the owners of adjacent properties do not know exactly where the boundary is located. If a neighbor uses a private road, driveway or path along the apparent boundary for five years, without permission, for five years, the neighbor has established the right to use it forever. This can happen with a shared driveway which turns out to be entirely or partially on the owner’s property and not the user’s property. We have litigated one such case through trial and appeal, and helped neighbors resolve several such disputes.
In the recent case of Wang v. Peletta, the trial court held and the court of appeal agreed, that such an easement established by use could not be acquired if the use was a public nuisance. The court of appeal relied on a case where the claimed easement would have blocked a public sidewalk. In Wang v. Peletta, Wang built a retaining wall, a shed and electrical fixtures, where an old barbed wire fence had been located. It later turned out that the old fence had not been on the property line, when Peletta had a survey performed.
Wang had installed all these improvements without obtaining required building permits. In Napa County, as in most cities and counties, if a construction project requires a building permit and is done without one, there is an ordinance which declares all such illegal work a public nuisance. It is a public nuisance, because it violates the county’s right to review the proposed construction and make sure that it is safe and legal. It does not matter that only the two neighbors are affected and not the general public.
In this case, the retaining wall was seventeen feet high and two-hundred-ninety-five feet long. There was no doubt that Wang knew that he was required to apply for and obtain a building permit. It was also clear that if he had applied for such a permit for work along the boundary, a survey would have been required and he would have done the construction on his side.
Know where your boundary really is. If your neighbor makes active use of the area along the boundary, make sure he is really on his side. If you are doing any work on your property, beyond minor repairs, get a permit.
If you have a question about a boundary, a potential easement or whether you need a building permit, please call us.