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 user to continue.
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 five 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 your
client's 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.