Boundary & Easement  ·  October 10, 2026

How Long Do You Have to Sue Over an Encroachment?

The short answer

Three years, under Code of Civil Procedure section 338, subdivision (b) — "An action for trespass upon or injury to real property." That is the whole subdivision.

For most encroachment disputes, that sentence answers almost nothing.

Whether the three years bars your claim depends on a prior question: is the encroachment permanent or continuing? If it is permanent, the clock starts when the structure goes up and three years later the claim is gone — all of it. If it is continuing, you may sue even though the encroachment began decades ago, but you can recover only the damages from the preceding three years.

For the ordinary case — a fence or a wall a few feet over the line, where the structure can be moved at modest cost — the published California decisions have found the encroachment continuing. Which means the deadline is usually not what defeats the claim.

What defeats it is something else: wait long enough and a court can give your neighbor an easement over the strip, as a matter of equity, and you keep the title but lose the use.

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How long do I have to sue my neighbor over an encroachment?

Three years from the right starting point, and finding that starting point is the whole exercise.

The threshold question: permanent or continuing

The framing comes from the California Supreme Court in Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862. The court put the test this way, at page 868:

"Whether a nuisance will be classified as continuing or permanent depends not on the offending party's interest in continuing the nuisance, but on the type of harm suffered."

And it identified where solid structures usually land, at page 869:

"The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff's land … In such cases, plaintiffs ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected."

If that were the end of it, most encroachment claims would be dead on arrival, because most of them involve something solid. It is not the end of it. Baker also states, at page 870, that in case of doubt as to the permanency of the injury the plaintiff may elect whether to treat the nuisance as permanent or continuing — though the Supreme Court later declined to decide, in Mangini, whether that power of election survives (12 Cal.4th at p. 1107). Worth knowing about before the complaint is drafted; not worth building a case on.

The modern test is abatability

In Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, the Supreme Court organized the inquiry around abatability. Quoting the Court of Appeal's earlier opinion in the same litigation, it described "the crucial test of the permanency of a trespass or nuisance" as "whether the trespass or nuisance can be discontinued or abated" (at p. 1097), and then held in its own words that "'abatable' means that the nuisance can be remedied at a reasonable cost by reasonable means" (at p. 1103).

Mangini itself was a contamination case, and the plaintiffs lost: they failed to produce substantial evidence that the contamination could be abated at reasonable cost, so they could not establish a continuing nuisance and the three-year statute barred the claim.

But the test cuts the other way for a fence.

Madani is the case on point, and the court said so

Madani v. Rabinowitz (2020) 45 Cal.App.5th 602 was the first published California decision squarely resolving an encroachment limitations question — the court said so when it explained why it was publishing. The Second District, Division Four, wrote at page 605:

"Because boundary fences and walls often are constructed without reference to boundary line surveys, disputes between neighbors about resulting encroachments are not uncommon. We found no published California case resolving statute of limitations issues involving this problem, however. We publish with the hope of heading off further litigation on the topic."

The rule it states, also at page 605:

"Whether a trespass or nuisance claim for an encroachment is barred by the statute of limitations turns on whether the encroachment is continuing or permanent. For permanent encroachments, the three-year statute of limitations begins to run on the date the encroachment began, and bars all claims brought after its passage. For continuing encroachments, a plaintiff may assert a claim even if the encroachment began outside the limitations period, but is limited to recovering damages incurred in the preceding three-year period."

And on the evolution of the test, at pages 608 to 609, the court traced the older formulations — whether the construction indicated an intention that the trespass be permanent, and whether the impact "may vary over time" — to the Mangini abatability test, which it treated as controlling.

Applied to the facts: a neighbor's fence encroaching about two feet was continuing, because the posts could be re-cemented and the fencing material reused at a cost of roughly $5,000 to $6,000. The claim was not time-barred despite the fence having stood for years, and the trial court ordered the fence and the neighbor's parked cars removed — an order the Court of Appeal affirmed.

What the plaintiff did not get was money. The trial court found he had failed to prove the amount of his damages: his appraiser measured the benefit the neighbor received by the cost of commercial car storage, and the court rejected that comparison. The limitations ruling and the removal order were worth having. The damages claim was worth nothing, for reasons that had nothing to do with the statute of limitations and everything to do with proof.

One caution on how far this generalizes. At page 607 the court said that whether an encroachment is continuing or permanent is "a fact question typically reviewed by appellate courts for substantial evidence," while adding that where the underlying facts are undisputed the question becomes one of law subject to independent review — and because the facts there were undisputed, it resolved the appeal under either standard. Either way the answer turns on the record, and a record showing a masonry wall on deep footings and a six-figure removal estimate is a different record from a $5,000 fence.

A 2025 decision, Wang v. Peletta (2025) 112 Cal.App.5th 478 (1st Dist., Div. 3, No. A169968), applies the same framework to a retaining wall and notes at page 489 that the solid-structure rule "may not apply where it appears the solid structures can be removed." The California Supreme Court denied review on September 3, 2025 (No. S292248).

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Can my neighbor end up with a legal right to keep the encroachment?

This is the question that decides most of these disputes, and it is not the limitations question. Two doctrines get raised and usually fail. A third is the one that usually decides the dispute.

Why adverse possession usually fails on a boundary fence

Fifteen years of a fence in the same place sounds like adverse possession. Code of Civil Procedure section 325 is why it usually is not. Subdivision (b):

"In no case shall adverse possession be considered established … unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector."

In the ordinary case the neighbor whose fence sits three feet onto your lot has not been separately assessed for that strip, has not paid taxes on it, and cannot produce certified tax collector records showing that he did — which is usually where the claim fails. Whether the strip falls inside the assessed description of the neighbor's parcel is worth checking rather than assuming. We cover the elements in more detail in whether a neighbor can claim part of your yard.

What the good faith improver statutes do not displace

This one is worth stating precisely, because the chapter's name points the wrong way. Code of Civil Procedure sections 871.1 through 871.7 give relief to a "good faith improver" — a person who improves land "under the erroneous belief, because of a mistake of law or fact, that he is the owner of the land."

Section 871.6 addresses the ordinary encroachment directly, in full:

"Nothing in this chapter affects the rules of law which determine the relief, if any, to be granted when a person constructs on his own land an improvement which encroaches on adjoining land."

On the statute's own words, nothing in the chapter affects the rules of law that determine the relief available in the classic encroachment case. It is aimed at the person who built on the wrong parcel believing it was his. For the person who built on his own parcel and crossed the line, section 871.6 preserves the existing rules of law rather than substituting the chapter's remedies — and those preserved rules are judge-made, which brings us to the balancing doctrine below.

Relative hardship and the court-created easement

Here is the asymmetry that should drive the timing of any encroachment dispute.

A court asked to order an encroachment removed does not grant that injunction automatically. It applies the relative hardship doctrine from Christensen v. Tucker (1952) 114 Cal.App.2d 554, adopted as the governing test in Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749. Christensen set it out at pages 562 to 563:

"In order to deny the injunction, certain factors must be present: 1. Defendant must be innocent—the encroachment must not be the result of defendant's willful act, and perhaps not the result of defendant's negligence. In this same connection the court should weigh plaintiff's conduct to ascertain if he is in any way responsible for the situation. 2. If plaintiff will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to defendant, except, perhaps, where the rights of the public will be adversely affected. 3. The hardship to defendant by the granting of the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant."

The starting presumption favors the owner. Christensen, at page 562: the court "starts with the premise that defendant is a wrongdoer, and that plaintiff's property has been occupied," so "doubtful cases should be decided in favor of the plaintiff." Hirshfield restated that at page 759, and confirmed that where the injunction is properly denied, a court sitting in equity may go further and fashion an interest protecting the encroacher's continued use.

There are limits on how far that goes. Christensen also holds, at page 563, that where a court denies the injunction and grants the defendant affirmative relief, "the affirmative relief granted should not be greater than is reasonably necessary to protect defendant." The trial court there erred by quieting title in fee rather than granting an easement.

Now put the two doctrines side by side.

The limitations analysis asks whether the encroachment can be abated at reasonable cost. The hardship analysis asks, in part, whether removal would impose a hardship on the neighbor greatly disproportionate to the harm of leaving it. The same facts that keep your claim alive can also be the facts that cost you the injunction — and every year you wait adds improvements, landscaping, reliance and expense to the neighbor's side of the balance, while your own delay becomes part of the conduct the court weighs under the first factor.

That is the sense in which waiting carries risk. Not because the claim expires. Because every year of delay strengthens the argument that the remedy should be compensation rather than removal — an argument that does not always succeed, but that gets better for your neighbor the longer you wait. Wang v. Peletta is a useful corrective in the other direction: there the encroachers were the plaintiffs, who had built an unpermitted retaining wall on what turned out to be the neighbor's land, and they failed to obtain either a prescriptive easement or an equitable easement. Long occupation is an argument, not an outcome.

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What can I recover, and what should I do first?

Two numbers govern the damages side, and they come from different sources.

The limitations cap. Under Madani, a continuing encroachment limits recovery to damages incurred in the preceding three years.

The use-value cap. Civil Code section 3334 measures the detriment from wrongful occupation of real property to include "the value of the use of the property for the time of that wrongful occupation, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages," plus the reasonable cost of repair or restoration and the costs of recovering possession.

These two caps are outer limits from different sources, not periods that add together. Which of the two actually governs a given claim depends on the limitations analysis above, and should not be assumed from the longer of the two figures.

Section 3334(b)(1) generally measures that use value as the greater of reasonable rental value or the benefit the occupier obtained. But subdivision (b)(2) narrows the measure where the wrongful occupation "is the result of a mistake of fact of the wrongful occupier," in which case the value of the use is the reasonable rental value only, not disgorgement of benefit. Note the statutory words: the carve-out is keyed to a mistake of fact, which is not the same thing as a neighbor who had the facts and was wrong about the law.

For a mistaken fence line, that usually means rental value of a narrow strip, which is a small number. It is worth knowing before the dispute is framed around damages. Madani is the cautionary example: a removal order, and a damages award of nothing.

What to do first

• Get a survey. Everything turns on where the line actually is, and a recorded map is not a survey. Until you have one, neither a claim nor a defense can be evaluated.
• Date the encroachment. When was the structure built? That date is irrelevant if the encroachment is continuing and dispositive if it is permanent.
• Ask whether it can be removed at reasonable cost. That is the abatability question, and it is the one that decides which limitations rule applies.
• Act, but act through the dispute, not around it. The limitations period is rarely the thing that kills an encroachment claim. Delay feeds the hardship balancing and can convert a trespass into a court-created easement you cannot undo, so the cost of waiting is real. The answer to that is a survey, a written demand and, if needed, a filed claim, on a timetable you control.
• Separate the removal claim from the damages claim. They have different caps and, in the typical case, very different values.
• Do not remove it yourself. Taking down a neighbor's fence, wall or retaining structure is its own wrong, whatever the survey shows about the line. Self-help exposes you to a damages claim running the other way, destroys the physical evidence that the abatability and hardship questions both turn on, and puts your own conduct squarely in front of the court that is being asked to weigh whose behavior created the situation. The remedy for an encroachment is a court order, not a crowbar.

This matters more than it used to. New construction close to a side or rear line is now routine, because state law requires ministerial approval of detached accessory dwelling units at four-foot setbacks — see whether an HOA can stop you building an ADU. A four-foot setback measured from the wrong line is a two-foot encroachment.

Our boundary and easement practice handles these. If what you are really facing is a limitations question across a different kind of real estate claim, our statutes of limitations reference collects the periods in one place. And if the dispute is about the scope of a recorded easement rather than an unpermitted intrusion, see what an easement for a road does and does not allow.

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Common questions

This article is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and case law change, and how they apply depends on the specific facts. Attorney advertising. Prior results do not guarantee similar outcomes. Robert B. Mobasseri, State Bar No. 193193, ROMO Law Group, Encino, California.