Boundary & Easement  ·  August 15, 2026

Can My Neighbor Claim Part of My Yard? Adverse Possession and Prescriptive Easements in California

A neighbor’s fence sits three feet inside your line. Their driveway crosses the corner of your lot. A shed has been in the same spot since before either of you bought. And now someone has said the words “adverse possession,” and you are wondering whether you have already lost the ground.

Almost certainly not. Here is why — and what the real risks are instead.

Adverse possession in California requires paying the taxes

A claimant asserting adverse possession must prove possession that was actual, open and notorious, hostile to the true owner, exclusive, and continuous for five years, under claim of right or color of title. Under Code of Civil Procedure section 325(a), land held under claim of right is deemed possessed only where it has been protected by a substantial enclosure or usually cultivated or improved.

Then comes section 325(b). Adverse possession may not be established unless the claimant shows that they, or their predecessors, timely paid all state, county, or municipal taxes levied and assessed upon the land for the entire five-year period — and that payment must be established by certified records of the county tax collector.

There is also an absolute bar for public property. Civil Code section 1007 provides that no possession, however long continued, of land, water, water rights, easements, or other property dedicated to public use by a public utility, or dedicated to or owned by the state or a public entity, ever ripens into title against the owner. Ground adjoining a city easement, a flood control channel, or a dedicated utility corridor cannot be acquired this way.

The claim that actually presents a risk: prescriptive easement

A neighbor who cannot win adverse possession will pivot to prescription — and this is the one to take seriously, because the tax element does not apply.

A prescriptive easement requires use that was open and notorious, continuous and uninterrupted for five years, hostile or adverse, and under claim of right. If your neighbor has driven across the corner of your lot to reach their garage every day for six years, without your permission, that is the fact pattern.

Two limits keep it from becoming a transfer of ownership:

• It is a right of use, not ownership. A prescriptive easement does not convey title.
• It cannot be exclusive. In Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, the court held that an interest so comprehensive that it supplies the equivalent of ownership is an estate rather than an easement — reasoning that an “exclusive prescriptive easement” would let a claimant obtain the practical result of adverse possession while evading the tax statute. Silacci v. Abramson (1996) 45 Cal.App.4th 558 held the concept has no application to a simple residential backyard dispute.

One nuance worth flagging, because older articles get it wrong: content stating flatly that California easements can never be exclusive is out of date. In Romero v. Shih (2024) 15 Cal.5th 680, the California Supreme Court held that an implied easement may be exclusive in scope even where it effectively precludes most practical use of the burdened area, distinguishing the Silacci line on the ground that implied easements rest on the parties’ mutual intent in a land transaction rather than on unilateral adverse conduct.

“The fence has been there forty years” is not a legal argument

The agreed-boundary doctrine is the third thing neighbors invoke, and it is much narrower than its reputation. It requires:

1. An uncertainty as to the true boundary line;
2. An agreement between the coterminous owners fixing that line;
3. Acceptance and acquiescence in the agreed line for five years, or under circumstances where substantial loss would be caused by a change of position.

In Bryant v. Blevins (1994) 9 Cal.4th 47, the California Supreme Court held the doctrine should not be applied where existing legal descriptions provide a reasonable basis for fixing the boundary and the claimant fails to show that genuine uncertainty about the true line led to an agreement. Long acquiescence in a fence is not a substitute for proof of uncertainty and agreement. Where the parcels come from a modern recorded tract map a licensed surveyor can retrace, the uncertainty element is generally unavailable.

What happens when you ask for removal

The default rule favors the property owner: a landowner is entitled to a mandatory injunction requiring removal of an encroachment.

The exception is the relative hardship doctrine, sometimes called an equitable easement. Under Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, three factors must all be present before a court will deny the injunction and instead impose an easement with compensation:

1. The encroacher must be innocent — the encroachment must not be willful or negligent;
2. Unless the public would be harmed, the injunction should issue if the plaintiff will suffer irreparable injury regardless of injury to the defendant;
3. The hardship to the defendant from an injunction must be greatly disproportionate to the hardship to the plaintiff.

The burden is on the encroacher and courts apply the doctrine sparingly. The innocence prong is where most claims fail: a neighbor who built without a survey, or who kept building after being put on notice, is generally not innocent for these purposes.

Which produces a rule that runs both ways. If you are building anything near a line, get a licensed survey first. If a neighbor is building over your line, put them on written notice immediately — that notice is what defeats the innocence element later.

Trees: the statute nobody expects

Civil Code section 833 provides that a tree whose trunk stands wholly on one owner’s land belongs to that owner even if its roots grow into a neighbor’s land. Section 834 provides that a tree whose trunk stands partly on the land of two or more coterminous owners belongs to them in common — meaning a boundary tree cannot be removed or materially harmed by one owner acting alone.

The consequences of getting this wrong are disproportionate to the act. Code of Civil Procedure section 733 makes a person who cuts down or carries off a tree liable for treble damages. Civil Code section 3346 sets damages at three times the sum that would compensate for the actual detriment, reduced to double where the trespass was casual or involuntary or the defendant had probable cause to believe the land was their own — and reduced to actual detriment where the trespass resulted from an improper survey performed by a licensed land surveyor that the defendant or a predecessor procured.

And the multiplier reaches more than the tree. In Fulle v. Kanani (2017) 7 Cal.App.5th 1305, the court held that damages for annoyance, discomfort, and mental anguish from intentional injury to trees are subject to doubling or trebling under section 3346. These cases are frequently worth far more than the replacement cost of the plant.

You may trim encroaching branches and roots back to the property line at your own expense. You may not damage or destroy the tree’s health. Exceeding that scope is timber trespass.

Fences: send the notice first

The Good Neighbor Fence Act of 2013, Civil Code section 841, presumes adjoining landowners share an equal benefit from a dividing fence and are equally responsible for the reasonable costs of construction, maintenance, and necessary replacement. The presumption is rebuttable on a preponderance showing that equal responsibility would be unjust, considering disproportionate burden, whether the cost exceeds the value added, undue hardship, whether the work is unnecessary or excessive, and whether it reflects one owner’s aesthetic preferences.

On height: Civil Code section 841.4 makes a fence or structure in the nature of a fence unnecessarily exceeding 10 feet, maliciously erected or maintained to annoy an adjoining owner, a private nuisance. Wilson v. Handley (2002) 97 Cal.App.4th 1301 held that a row of trees planted along a property line to separate or mark it counts as a “structure in the nature of a fence” — so a wall of fast-growing evergreens planted to block a view can fall within the statute. Many California cities impose stricter limits by ordinance; the state statute is a floor.

Have you waited too long?

Probably not, though it depends on what is on your land.

Trespass and nuisance claims carry a three-year period under Code of Civil Procedure section 338(b). But California distinguishes a permanent trespass — an intrusion under circumstances indicating it was meant to be permanent, where the period runs once from the original intrusion — from a continuing trespass, one that can be discontinued or abated at reasonable cost. For a continuing trespass, successive actions may be brought, and the claim is not barred merely because the condition has stood for decades, though damages recovery is generally limited to the three years preceding filing. Whether a trespass is continuing or permanent is a question of fact.

A removable fence, shed, or driveway is typically continuing. And separately, under Muktarian v. Barmby (1965) 63 Cal.2d 558, a quiet title cause of action does not accrue while you remain in undisturbed possession.

What to do

1. Get a licensed survey and have the record of survey filed. Under Business and Professions Code section 8762, a surveyor must file a record of survey with the county surveyor in defined circumstances, generally within 90 days. A recorded survey is public, prepared by a licensed professional, and ordinarily the most persuasive document in the case.
2. Pull the recorded title and check for easements. An express easement someone has not used in thirty years is still there — Civil Code section 811’s non-use provision applies only to easements acquired by enjoyment.
3. Put it in writing. A dated written notice defeats the innocence element of the relative hardship doctrine and creates the record you will want later.
4. Consider a license. If you are willing to tolerate the use, a written revocable license stops the prescriptive clock.
5. Check your title policy. Coverage and the duty to defend can change the economics of a boundary dispute entirely — and there is no fee-shifting statute for quiet title, boundary, encroachment, or Good Neighbor Fence Act claims. Each side generally bears its own fees.

Most of these matters resolve without trial, and the ones that resolve well tend to do so because one side assembled the record early. Our boundary and easement practice page covers the doctrines in more detail, and consultations are free.

Common questions