US-CaliforniaCan my neighbor's fence encroaching on my property become theirs?
Yes, under California law, a neighbor’s fence encroaching on your property can become theirs through adverse possession — but only if they openly, continuously, and exclusively use the land for at least 5 years and pay property taxes on it.
What the Law Says
California law allows someone to gain legal ownership of land they don’t own — including land under a neighbor’s fence — through a legal doctrine called adverse possession. To succeed, the person must meet several strict requirements set by statute.
Adverse possession in California is governed primarily by two statutes: Code of Civil Procedure section 325 (which defines the elements) and section 318 (which sets the 5-year statutory period). The claimant must show their use of the land was 'hostile' (without permission), 'actual' (physically using it), 'open and notorious' (visible to anyone, including the true owner), 'exclusive' (not shared with the owner or public), and 'continuous' for the full statutory period.
Critically, under CCP § 325, the person must also have 'paid all taxes levied and assessed upon such land' during the 5-year period. This tax requirement is mandatory — failing to pay taxes defeats the claim, even if all other elements are met.
Statutory TextFor the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument or judgment, land must be held and possessed for five years by such person, or those under whom he claims, in the manner following: … (b) During which time the party holding possession has paid all taxes levied and assessed upon such land.
— Cal. Code Civ. Proc. § 325 — Adverse possession; requirements
Statutory TextNo action for the recovery of real property, or for the recovery of the possession thereof, can be maintained unless it appears that the plaintiff, or his ancestor, predecessor, or grantor, was seized or possessed of the property in question within five years before the commencement of the action.
— Cal. Code Civ. Proc. § 318 — Limitation of actions for recovery of real property
What Courts Have Said
California courts have consistently emphasized that adverse possession is disfavored and strictly construed — especially when it involves residential boundary disputes like encroaching fences.
The court held that a fence alone does not satisfy adverse possession; the claimant must prove actual, open, and exclusive use of the land beyond mere enclosure — and must show tax payments for the full 5 years.
The court affirmed that permissive use — such as a fence built with the owner’s implied consent — defeats hostility, a required element of adverse possession.
What to Do
Check your property survey or deed to confirm the exact boundary line.
Document the encroachment (photos, dates, measurements) and whether you ever gave permission.
Review county tax records to see if your neighbor paid taxes on the disputed strip.
Send a written notice demanding removal or resolution — this may interrupt continuous possession.
Consult a real estate attorney promptly; if litigation arises, you generally have 5 years from discovery to file a quiet title action.
Sources
Same Question, Other Jurisdictions
Canada
US-New YorkNot legal advice. This article is general information based on publicly available sources, written for educational purposes. Laws change and individual situations vary. Consult a licensed attorney in your jurisdiction before acting on anything you read here. Last reviewed: 2026-06-08.