Property Encroachments Are Not Subject To Three-Year Statute Of Limitations Unless the Encroachment Is Permanent And Cannot Be Remedied At A Reasonable Cost

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Mar 27, 2020

Ali Madani and Michael Rabinowitz are next door neighbors in Los Angeles. Rabinowitz had lived on his property since 1979 and Madani, who purchased his property in 2000, began living there in 2015.

Madani’s parcel is mostly located behind Rabinowitz’s except for a 10-foot wide “flagpole” of land that extends out to the street.

Since Rabinowitz moved onto his property, a fence has run alongside the driveway separating the driveway from an adjacent property. Rabinowitz has used the driveway to store old and inoperable cars he owned. In 2015, Rabinowitz replaced the original fence with a new one in the same location. 

In April 2015, Madani asked Rabinowitz to move the cars parked on his driveway in order for Madani to repair the driveway. In June 2015, Madani sent Rabinowitz a letter reiterating his request. Rabinowitz did not respond. In July 2015, Madani mailed a second letter, again requesting that Rabinowitz move his cars from the driveway. In August, Rabinowitz responded, stating that he was “unwilling to forfeit [his] right to park” on the driveway.

Madani commissioned a survey of his property, which confirmed that the portion of the driveway where Rabinowitz parked his cars was Madani’s property. The survey also revealed that Rabinowitz’s fence encroached onto Madani’s property by approximately two feet.

In March 2016, Madani filed a complaint against Rabinowitz, claiming that the fence and cars constituted a trespass and a nuisance. Madani sought to remove a portion of Rabinowitz’s fence which encroached on his property, and to enjoin Rabinowitz from parking his cars on the driveway. In turn, Rabinowitz filed a complaint against Madani, seeking to claim title to Madani’s driveway based on the theories that he had an easement to use the driveway and improved the property in good faith.

At trial, Rabinowitz raised a statute of limitations defense to Madani’s claims. Rabinowitz argued that the fence constituted a permanent encroachment, which is subject to a three-year statute of limitations that began to run on the date that the encroachment began. Madani countered that both the fence and the cars constituted continuing, rather than permanent, encroachments, and that his claims against Rabinowitz were not subject to the three-year statute of limitations.

After a court trial, the court found: (1) Madani’s trespass and nuisance claims were not barred by the statute of limitations, as Rabinowitz’s fence and vehicles were continuing rather than permanent encroachments; and (2) Rabinowitz did not prove he was entitled to judgment based on his prescriptive easement and good faith improver claims. The trial court issued an injunction requiring Rabinowitz to remove his fence and cars from Madani’s property. Rabinowitz appealed.

On appeal, the Court of Appeal first considered whether Rabionwitz’s encroachment was continuing or permanent and whether Madani’s claims were time-barred.

The Court concluded that a continuing nuisance is a series of successive injuries.  A permanent nuisance is a permanent injury to property. For continuing nuisances, each repetition of the nuisance is a separate wrong, and begins a new statutory period during which the injured person may sue based upon the new injury. By contrast, the statute of limitations for a permanent nuisance begins to run when the nuisance begins and bars all claims after the passage of the three-year period.

Rabinowitz argued that the encroachment of the fence constituted a permanent encroachment because it was erected prior to 1979. In support of this position, Rabinowitz contended the fence was intended to be a permanent structure and has been affixed to posts or poles cemented into the ground where, for over 30 years, it has served as a boundary marker. He argued that Madani’s claims were therefore barred by the statute of limitations.

The Court considered Supreme Court precedent, which provides that the crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated. Under this test, a trespass or nuisance is continuing if it can be remedied at a reasonable cost by reasonable means. If not, the trespass or nuisance is permanent. The Court then considered that Rabinowitz replaced the fence in 2015, and that he testified the existing fence could be moved for a comparatively modest cost. On these undisputed facts, the Court concluded that the expense Rabinowitz would incur in moving his fence is not sufficient to regard the fence as permanent.

Accordingly, the Court of Appeal concluded that the trial court did not err in finding the fence was a continuing encroachment, and correctly concluded Madani’s claims for trespass and nuisance based on the fence’s encroachment were not barred by the statute of limitations. The Court of Appeal then affirmed the trial court’s decision in Madani’s favor, and ordered Rabinowitz’s fence and cars removed.

Ali Madani v. Michael Rabinowitz (2020) 45 Cal.App.5th 602.