The Trespassing Neighbor: An All-Too-Common Issue Among Rural Landowners

As a real property attorney, I receive numerous calls from owners of property in Humboldt, Mendocino, Del Norte, and Trinity Counties about neighbors who are trespassing or encroaching on their property, wondering what they can or should do about it, especially if cannabis is involved.
 
The first thing a landowner should know is that “self help,” such as tearing down a shed or greenhouse built by a neighbor that the owner believes sits on his or her property, is usually a bad idea. Unless there is a recent survey making crystal clear that the structure trespasses onto the owner’s property, removing that structure can be an expensive mistake. 
 
However, if a neighbor does appear to be encroaching or outright trespassing, the owner should act quickly to protect his or her rights. Especially since the passage of local and state law legalizing medical and recreational cannabis and providing a regulatory framework for cannabis cultivators, surveyors in the region are booked an extremely long time period in advance. Fortunately, Janssen Malloy LLP has long-established relationships with various surveyors and engineering firms and may be able to help expedite that process. Contacting a lawyer and taking legal action can be crucial, as inaction for an extended period of time can lead to the trespasser potentially claiming prescriptive rights.
 
One thing a landowner can do prospectively to prevent a trespasser from claiming prescriptive rights is to execute and file with the Recorder’s Office a notice pursuant to Civil Code section 813. That law states, in summary, that a landowner who publicly files a notice that any use of their property is with the owner’s permission effectively defeats - preemptively - any future claim that a trespasser’s use of the owner’s land was adverse. Adverse possession is one of the necessary elements to establish prescriptive rights. Recording this type of notice is a very inexpensive and straightforward way for a rural landowner to protect him or herself. 
 
If you have an encroachment or full-fledged trespass issue, contact Janssen Malloy LLP to schedule a consultation. Our attorneys and paralegals are also able to assist you in preparing and properly filing a Civil Code section 813 notice to avoid such problems in the future.

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