The construction and maintenance of a building that encroaches on the adjoining land constitutes an invasion of a right, but is not considered as an ouster of possession.[i] Thus, courts have held that an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, will not be granted in a case involving a garden-variety residential boundary encroachment.[ii] Hence a person who encroaches on a residential boundary cannot establish an exclusive prescriptive easement.[iii]

In some cases, even though a person who encroaches on a residential boundary cannot establish an exclusive prescriptive easement, the court may refuse to enjoin the encroachment and may exercise its equity powers to affirmatively create an interest in the owner’s land which will protect the encroacher’s use.  Although such an equitable “encroachment right” is similar to a prescriptive easement, it is doctrinally different.[iv] In Harrison, 116 Cal. App. 4th 1084, Welch sought a prescriptive easement for to maintain the woodshed and the landscaping on Harrisons’ property. The court held that an encroaching woodshed, just as much as any encroaching fenced-in landscaping, as a practical matter completely prohibits the true owner from using his land.  The court did not grant Welch a prescriptive easement because of the exclusive nature of the uses Welch was making of the encroachment area.[v]

On the other hand, some courts are of the view that an encroachment will, if maintained under a claim of right for the prescribed statutory period, ripen into a perpetual easement.[vi]

A person claiming a prescriptive right to maintain an encroachment has the burden of proving the facts supporting the prescription. [vii]

[i] Norwalk Heating & Lighting Co. v. Vernam, 75 Conn. 662 (Conn. 1903)

[ii] Harrison v. Welch, 116 Cal. App. 4th 1084 (Cal. App. 3d Dist. 2004)

[iii] Id.

[iv] Harrison, 116 Cal. App. 4th 1084

[v] Id.

[vi] Barberi v. Bochinsky, 43 N.J. Super. 186 (App.Div. 1956)

[vii] Kafka v. Bozio, 191 Cal. 746 (Cal. 1923)