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.