Monday, April 15, 2013

New Laws on Neighbor Disputes

This from a friend (and former intern) of mine. All good new stuff:

3 New Laws Affecting Neighbor Disputes

by John Corcoran

Few types of civil disputes can be as heated and rancorous as a neighbor fighting a neighbor.

It’s no wonder neighbors will spend a fortune fighting over a property issue - particularly in Marin.

Real estate in Marin sells at a premium, and one neighbor’s expanded deck or second story can mean a loss of tens of thousands in value for another neighbor.

For these reasons, neighbor disputes is a fertile area of law in Marin county.

In the past year, there were a number of changes in the law which affect common neighbor disputes. Here are three significant developments:

1.  Agreed Boundary Doctrine Requires Actual Agreement.

A common argument in neighbor vs. neighbor disputes is the “agreed boundary doctrine.”

The agreed-boundary doctrine is an exception to the general rule that the boundary between two properties is determined by deeds recorded with the county.

The doctrine provides that when two adjacent owners who are uncertain of the true position of the common boundary between the parcels agree to a common boundary, mark it on the ground or build it up, and occupy each side for a period equal to the statute of limitations, then such line becomes the boundary.

One neighbor may use this argument where a fence is located on another neighbor’s property and they have been making use of the neighbor’s land for some time.

In Martin v. Van Bergen (2012) 209 Cal. App. 4th, 84, Van Bergen argued that a fence marked the agreed-upon boundary. The Court of Appeal found that there was no evidence that the parties had entered into an actual agreement for a boundary along the fence line.  The court also noted that the actual boundary was ascertainable.

The case is significant because the court articulated the rule that there must be an actual agreement on an agreed boundary line for the Agreed Boundary doctrine to apply.

2.   New Easement Legislation

Another major area of neighbor vs. neighbor conflict is easements. Often two neighbors get into disagreements regarding who is responsible for maintenance costs of an easement, particularly when there is no written agreement to share costs.

Legislation signed into law during 2012 (AB 1927/Jones) authorizes the owner of a right-of-way easement to seek a judgment to determine the proportionate liability of each owner for maintenance costs.

Under the prior law, an owner of an easement was able to apply to a court for the

appointment of an arbitrator to apportion the costs.

This new law will make it easier for an owner of an easement to obtain a judgment in small claims or superior court for apportionment of maintenance costs rather than appointment of an arbitrator.

3.  Large Homes May Require CEQA Review

Ordinarily, large single family homes are not subject to CEQA review. That’s because CEQA contains a categorical exemption for single-family homes.

The reason for this is single-family residences are usually relatively small and do not individually have major environmental impact. Requiring each new single family home builder to go through the rigorous and expensive CEQA process would cause undue burdens and expense.

It is also for this reason that neighbors opposing new construction or remodels of large homes often argue that applicants should be required to produce an Environmental Impact Report as required by CEQA, under a theory that the home is so large an exception should be made to the exemption.

A new case will give those neighbors new ammunition.  In Berkeley Hillside Preservation v. City of Berkeley 203 Cal.App.4th 656 (2012), the Court of Appeal held that the extremely large size of a proposed Berkeley home constituted an “unusual circumstance” which made the project ineligible for existing exemptions under CEQA.

The Berkeley project proposed a 6,478 square foot home with an attached 10 car, 3,394-square foot garage. Given this is well within the range of many larger size homes in Marin, it is likely that opponents of new proposed similarly-sized single family homes will use Berkeley Hillside Preservation as an argument for full CEQA review.

John Corcoran is an attorney with the Corcoran Law Firm, P.C., in San Rafael, where he practices real estate/land use and works with small business owners. He is also a member of the Tiburon Planning Commission. He may be reached at

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