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OF GOOD FENCES, BAD NEIGHBORS, AND RECOVERING LEGAL COSTS

Tim Kowal     April 24, 2020

"It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation between good fences and good neighbors and, if so, whether causality runs in the opposite direction (i.e., maybe good neighbors build good fences). But it cannot be denied that a good fence accurately demarcating the boundary between the parties' real properties in this case could have avoided substantial expense and grief." (Seraji v. Demirjian, Case No. G048611 (4th Dist., Div. 3 July 17, 2014) (unpublished).)

A property owner in Laguna Beach sued a neighbor for encroaching on his undeveloped parcel. The owner prevailed on his trespass and ejectment claims, but the Court of Appeal reversed on the trespass claim because the action was filed after the three-year statute of limitation. The ejectment claim was timely under the longer five-year statute.

(In fact, an ejectment claim never expires unless the encroacher can establish superior title via adverse possession or a prescriptive easement. (Harrison v. Welch (2004) 116 Cal.App.4th 1084.))

The owner also argued he was entitled to recover his attorneys' fees. Civil Code section 3334, a trespass and ejectment statute, provides: "The detriment caused by the wrongful occupation of real property . . . is deemed to include the value of the use of the property for the time of that wrongful occupation . . . and the costs, if any, of recovering the possession." Because attorney's fees is not specifically mentioned in the statute, the lower court properly refused to award them. (That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419, 1428.)

For more on damages under Civil Code section 3334, see our blog at californiatrespasslaw.com.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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