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REAL ESTATE TRANSACTIONS AND LITIGATION: THE CHALLENGES OF NEIGHBOR REAL ESTATE DISPUTES

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One of the most challenging real estate and land use issues I have encountered over the years are neighbor disputes regarding boundaries or the existence of easements. In addition to the legal issues which can be involved, an additional challenge is how emotional these disputes can become since you are dealing with parties who are in most cases still living next to each other.

Boundary disputes can involve the conflict regarding the placement of a fence and sometimes even the location of a structure on adjoining properties. A property owner will sometimes discover the fact that the legal description of its property which has been an accepted boundary for decades may be wrong. As a result, a purchaser of real property should never assume that the structures and fences are all constructed on your property. The best way of initially confirming that there is not a potential boundary issue is to have a licensed surveyor complete a survey of the property prior to your purchase. The survey will confirm the legal boundaries and what is physically on the property is accurate. Always read your title documents before buying and make sure you have a good legal description and know the boundaries. In addition, don’t assume that if you are buying a house in a planned residential development that you don’t have to be concerned about boundary issues. I have had cases where the original developer improperly constructed the fences or walls between properties which has been discovered years and several owners later. You should also be aware that if you live in a community which is also governed by a Homeowners Association (HOA) and Covenants, Conditions and Restrictions (CCR’S), these documents could impact how you deal with any boundary disputes and how they can be resolved.

Most Boundary disputes only come to light when one of the real property owners tries to do something with their property and discovers the encroachment. Initially there will most likely be an attempt by the property owners to try and resolve these disputes informally. However, it is frequently unreasonable to expect the person who is encroaching on your property to willingly remove an encroachment, either due to the cost, the fact that the owner now relies on the encroachment for the use of its property or a belief that it is not an encroachment.

When a boundary encroachment is confirmed and the property owners agree to resolve it, they need to either remove the encroachment or if the removal is not feasible, prepare the new legal descriptions of the new property boundaries so that the legal descriptions of both properties are correct going forward. You can also create a written easement which is further discussed below. This is very difficult process to undertake without a real estate attorney and experts who can survey and draft legal descriptions which will resolve the issues.

If a dispute cannot be resolved among themselves, one of the parties may file a lawsuit. In California, courts will frequently use what is known as the “fairness and common sense doctrine”. This is an equitable doctrine where the Court will balance the relative hardships of each property owner when making is rulings. This analysis is incredibly subjective based on the individual judge and, as a result, it is extremely difficult to predict what the outcome might be. The result could be changes to original plans which you might think are inequitable and do not have a reasonable basis.

There are Appellate Court decisions which have resulted in property owners losing a part of their property to the adjacent property owner when that property owner has encroached, even if intentionally, on the adjacent property owners. This is because as the Court balances the hardship the Court may conclude that the hardship and cost of removing the encroachment is greater that the impact of the encroachment.

This potential unfair result is a major reason why you should try and resolve boundary disputes without leaving the decision to the uncertainties of litigation.

Another frequent conflict involves easements. An easement creates a right of use over the property of another for a specific purpose. In California, there are four basic forms of easements.

A written easement is created by a deed or contract. The allowed use of the easement is determined by the specific language contained in the easement. Frequently it is for the purposes of ingress and egress to allow access to a property, which might otherwise be landlocked. However, you also have easements for drainage purposes, slopes and other similar uses.

It is very important that a written easement has a good legal description of the property subject to the easement. Many disputes arise from inaccurate legal descriptions or vague language regarding the use of the easement.

A second form of easement is by prescription. This is established by somebody showing that it has used the easement openly, notoriously and continuously for at least five years. This use has to be adverse and hostile to the owner of the property. In other words, it is a use the property owner would not want, but which the owner of the property should have known. You will frequently find this form of easements in rural and less development areas. However, it is important to know that if the property owner has given permission to use the land, it is not a prescriptive easement.

A third easement is by implication. This form of easement is created by the inferred intent of the parties and has a two prong test. First there must a strict necessity for the easement such as access to an otherwise landlocked parcel. Secondly, both of the properties involved were once under the same title and the easement was used to the access the other property. Please note that to claim an easement by implication the property must be landlocked, not just that another access to the property is inconvenient.

The final form of easement is by necessity. It occurs when the easement is essential for the beneficial use and enjoyment of property conveyed to a property owner. This easement runs with the land and continues even if property is transferred.

Disputes which arise regarding easements are frequently caused by the misuse by the person entitled to use the easement or interference by the property owner with the use of the easement. Easements may also be a method of resolving boundary disputes which were discussed at the beginning of this article.

While easement disputes are often in more rural area, or on undeveloped, properties, I have had cases where suburban subdivisions have not properly created an easement. While you should have notice of a written easement on the title report of your property, it can sometimes be very old and the language vague. In regards to the other forms of easements, you may have no notice when you purchase a property since the actions perfecting the use of easement rights occurred prior to your ownership. As a result, you must perform not only due diligence in investigating the history of your property, but also the adjacent properties to determine if there are any potential easements which would impact you.

In the case of vague written easements, or one of the other forms of easement, I always advise that the parties attempt to create good legal descriptions of the easement, the clear use of the easement and the responsibilities of the two property owners which would include issues such as maintenance. A clear and concise written easement will ensure that there is little confusion regarding this issue when either party tries to sell their property.

In conclusion, in both boundary and easement real property disputes, it is essential that you work toward creating the clear legal documents to be recorded on the properties. While litigation may be necessary, it is clearly the last resort due to both cost and the uncertainty of how the courts may rule.

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