Help! I need legal advice re: easements

[rmorgan]

mdbarb--

I'm not a Cal lawyer and not giving Cal legal advice.

As you must know by now, the elements of adverse possession under California law are

"1) possession was held under either a claim of right or color of title; (2) the premises were occupied in such an actual, open, and notorious manner as to constitute reasonable notice to the record owner; (3) occupation was both exclusive and hostile to the true owner; (4) possession continued uninterrupted for a period of at least five years; and (5) the claimant paid all taxes assessed against the property for the five-year period. (Code Civ. Proc., § 321 et seq.; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 16:2, pp. 6-8.)"

Although I'm not a Cal lawyer and not giving Cal legal advice, by your description, as to anything outside the existing easement to include the parking space, your neighbor's claim fails on 1, 3, and, I hazard to guess, 5. You made clear that he was parking on your land by your consent, so no claim of title. You agreed, so not hostile. It certainly should be easy to check if he's paid some part of your property taxes.

I'm not a Cal lawyer and not giving Cal legal advice, but it seems like proscriptive easement is not much different. "To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right." Although I'm not a Cal lawyer and not giving Cal legal advice, here, he fails at least elements 3 and 4, for the same reasons.

Although I'm not a Cal lawyer and not giving Cal legal advice, it seems like as to the existing easement, it is common for a driveway ingress/egress easement to specify a wider space than the actual way for reasons of maintenance, etc. I think he would be limited to the existing roadway +/- even without the "existing road" language, and your analysis is is spot on that those words strengthen your position.

I'm not a Cal lawyer and not giving Cal legal advice. But if I were, I would think that it might be cost-efficient in the long run to go in now with an action for a declaration of rights to have the court declare that you own the land and that the easement is what you say it is--after three failed injunction attempts, the neighbor will look like an [censored], possibly giving you some advantage.

If I happened to be a Cal lawyer giving legal advice, I might think about sending a letter to the guy saying that his MH is on your land, that you are withdrawing your permission, and will have to have it towed away if it is not removed by, say, Tuesday.

Good luck. BTW, did I mention . . . I'm not a Cal lawyer and not giving Cal legal advice?

 

[heehaw]

if he moves his rv, park something there, or dump some big rocks there so he can't pull it back in.
heehaw

 

[Anonymous Poster]

Have you considered a ligthning strike on his RV ??

Maybe starting a pig farm ???

Of couse I'm kidding !!!!

If their being such jerks now ...it's only gonna get worse when they get done with court.

Settle this now and avoid a future of battles. You should both be able to sort it out. You may be in the right, but sometimes its better to suck it up and avoid the cost and hassle of the battle.

Does he have any land that you would benefit from if you arrange a foot for foot swap ??

Good luck...

 

[wasabi]

Tough deal. Bad neighbors try our patience and create stress!

My .02 ---You have previous verbal "agreements" with your now disagreeable neighbor that he is apparently not honoring. Consider your actions going forward as part of ongoing negotiations and seek closure. Fault to the conservative side and don't over-react.....Stay in the court's good graces....that, and "what is right", may wear him down eventually.

I side with those that advise you to immediately send him (via his attorney) a letter demanding that the RV be moved. By all means cite your right to, (be prepared to enforce) per diem storage fees. You might even go so far as to state they will be retroactive if RV is not moved in X days. That is called leverage, and while not necessarily appreciated, it is nonetheless likely to be respected.

On the other hand, taking matters into your own hands by moving the RV will likely give rise to exchanges of passive-aggressive blows for years to come.

If the RV is moved, build the fence....if not, put a lien against it. You will eventually collect....then take a deserved vacation from the jerk (after rigging your property against possible adverse intrusion)

"the sharpest sword is rarely unsheathed"

 

[mdbarb]

boy do i ever wish he would move the rv just once > all i need is about one second> but unfortunately he has moved it twice in seven years and i"m sure he won"t budge now>

 

[mdbarb]

Thanks for the non legal advice from not a Cal lawyer.
Correct - I also feel that they lose the adverse possession as they didn't pay the taxes and I gave permission. I'm not clear on what "possession was held under either a claim of right or color of title" means but even one of these points is sufficent to deny the claim.
The prescriptive rights issue is almost as much a given as I gave permission when I bought in Sept. 94. It gets just a little fuzzy though: He bought in March of 89 - five years and six months before me. They did not live there - They had a tenant which they removed with some difficulty before moving in themselves. I don't yet know the dates but I feel confident the tenant did not park in this area as there is a two car garage closer to the house. So if they rented to the tenant and/or didnot use that space for about 6 months and a day from when they bought in 3/89 to when I gave permission in 9/94 then they have no prescriptive rights. At least thats how I see it.... not being a lawyer.
I can send him a letter revoking permission but it will just go ignored as they attempt the othre junk mentioned above.
BTW now the judge wants us to see a mediator. I dunno I just have a feeling a mediator will just seek a middle ground compromise so no one is happy. And anyway how can I compromise on some one trying to take a 30' srip of my land - by giving him half?!

 

[rmorgan]

mdbarb--

As to the 5.5 years prior to you--even if he had managed to establish a right at that time, I think he gave it up by not asserting at that time that he already had the adverse interest. Certainly it would be his burden to show that he believes he had a right established by 1994, and if so, why didn't he pursue it then? Courts don't look kindly, as a general rule, at sleeping on one's rights. The phrase "claim of right" means that he said it was his and you were wrong to say it was yours, which he didn't. "Color of title" means that a title error had created the belief that the land was within his lot based on a colorable title--the more common adverse possession situation being when a botched legal description gives somebody the mistaken belief that land is theirs, and the "real" owner doesn't do anything about it. As to mediation--the mediator can't make you do anything, and just because there is a dispute doesn't mean that the truth lies in the middle. It often doesn't. You definitely need Cal advice from a Cal lawyer on this one, but I do believe that if you demand removal and it does not occur, you have the right to have the vehicle removed.

Good luck.

 

[mdbarb]

thanks rmoran

i will keep you posted> all is quiet in the battlefront so i will try to enjoy that for a few days> we shall see

 

[Anonymous Poster]

MDBARB,

I'm not an attorney but I'll toss my hat into the arena. I'll focus my comments on the RV issue. Is the RV licensed and registered?? If not, are there any local ordinances that prohibit unlicensed/unregistered vehicles on a persons property (i.e. abandoned vehicles)? Two, are there any local ordinances that establish setbacks whereas the RV being parked too close to a property line would constitute a violation and thus have to be moved? Three, circle the wagons. Fence in his RV. If he tries to obtain the property by adverse possession, perhaps he'll be limited to that which the RV actually occupies. Four, if the RV has sat for a number of years, perhaps a call to the local conservation dept with a message that his lawn ornament is leaking oil/antifreeze might turn up the heat abit. I hope the issue does not linger in court, been there.

Russ

 

[micromike]

Yep, about time to build that fence and goat barn you've always wanted. Why heck, that abandoned RV would make a perfect goat barn!!! All you have to do is fence in your property. Maybe need a few roosters to keep em company! Well, if you can't use the RV surely you can find some old boards and nail something together., maybe some old 55 gal barrels (for the roosters) and such. If I was at home right now, I'd attach a picture I took a few years ago of a goat living in an old railroad engine. Really cute! I'll see what I can do this weekend. Anyway, if all else fails, be creative!

Good luck

Mike