Eminent Domain Report

In Wang v. Peletta, the California Court of Appeal held that property owners cannot acquire a prescriptive easement to maintain an encroaching structure if that structure was built without required permits and constitutes an abatable public nuisance.

In Wang, homeowners built a retaining wall and related improvements without first obtaining the required permits or a survey. They believed the work was on their own property, but it actually encroached significantly onto their neighbor's land. The county later issued citations to the homeowners requiring correction of the code violations.

The homeowners and the neighbor sued each other, each seeking to establish their rights over the wall and underlying property. The trial court granted judgment in the neighbor's favor, quieting title against the homeowners' easement claims and ordering them to remove the encroachments.

The Court of Appeal affirmed the trial court's ruling in the neighbor’s favor. The Court of Appeal held that the trial court did not err in excluding evidence of a prescriptive easement on a pretrial motion in limine, determining as a matter of law that the homeowners could not establish a prescriptive easement because the unpermitted wall constituted a continuing nuisance. Because the encroachments were built without a permit, the nuisance they created had always been subject to abatement — meaning it could not ripen into a prescriptive right.

Wang v. Peletta reaffirmed the general rule that a court will not find the existence of a prescriptive easement if it would perpetuate a public nuisance. The homeowners also failed to establish an equitable easement.

The case also serves as a reminder that a relatively routine, minor improvement can cause major legal headaches if not properly approved. In addition, courts won't bail out property owners from the consequences of their own lack of due diligence. Bottom line: get the permit!