Articles Posted in real estate law

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Assessor’s Parcel Numbers are usually included in the legal description of a deed. But that does not always work; there are times when the APNs do not exactly describe the individual parcel. The assessor’s office does not necessarily follow the subdivision map in assigned APNs. Parties do not necessarily have the Assessors map to refer to and this leads to confusion in what is being conveyed (or insured by the title insurer!).

This may be why use of an APN in a summons published in a quiet title action is not sufficient. This problem was pointed out in a recent case where some deeds included a metes and bounds description (Metes and bounds are the boundaries of a parcel of real estate that identified by its natural landmarks and measurements), plus APNs. The APN included area that is not within the metes and bounds description. One party said I own it all, and the other said no.

Assessors-parcel-number-attorneyIn XPO Logistics Freight, Inc. v. Hayward Property, LLC, a large property was subdivided into four parcels in a recorded parcel map. But before that, the County Assessor divided the property for (tax purposes) into three parcels with separate APNs shown on an unrecorded assessor’s map. As three numbers were tacked onto four parcels, using an APN does not identify a specific subdivided lot. There were a number of subsequent transactions, resulting in a dispute about what was actually conveyed. Some legal descriptions of the property conveyed included a metes and bounds description plus APNs.

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Easements for road purposes are common in California. But what happens when the width of the granted easement is far greater than the road actually used by the easement holder? In a decision out of Napa the court held that a deed granting a nonexclusive easement of a specified width does not, as a matter of law, give the owner of the dominant tenement the right to use every portion of the easement; the owner has a right to place improvements on the easement as long as they don’t unreasonably interfere with the rights of the easement holder. But the court did not extinguish any part of the easesment.

Sacramento-unexclusive-easement-attorneyScruby is the owner of an acre of land and a single-family home at 7429 St. Helena Highway in Napa County, California. Grapevine owns and operates Cosentino Winery located at 7415 St. Helena Highway, consisting of 4 acres just south of Scruby’s property. The only access to Scruby’s landlocked property is over an easement on Grapevine’s property.

The problem deed states that Scruby is granted “[a] nonexclusive easement, 52 feet in width, for road and utility purposes.” The precise boundaries of the easement are set out in the deed by reference to a survey map and are generally described in this litigation as a 52-foot wide corridor from Highway 29 along the northern side of the winery property proceeding westward and ending in a cul-de-sac 100 feet in diameter.

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What if you had an easement to place roads across property to access your own, and you then developed your property into a shopping center. Could you include parking spaces in the easement area? A recent California decision points out the requirement to be clear in drafting easement language because only necessary incidental uses are included.

Sacramento-easement-attorneyIn Prune v City & County of San Francisco (67 CalApp 5th 61) the City of San Francisco sought eminent domain and obtained title in 1951 to an 80-foot strip of land to construct a Hetch Hetchy pipeline to construct an underground pipeline conveying water to San Francisco from the grandparents of plaintiffs. The deed reserved certain rights in the plaintiffs’ family’s favor, including among other things the right to use the surface of the property for pasturage and the right to construct roads and streets “over and across” the property “but not along in the direction of the City’s pipeline or lines.” Plaintiffs developed the property into a commercial center, and 75% of the pipeline property had been paved. To allow this development, in 1967 the City granted a revocable permit to use the pipeline property for additional parking and landscaping for a fee of $50 per month. Years later the City wanted to increase the permit fee from $50 to over $4,500, and this lawsuit resulted.

The Deed to the City contained two reservations, fully set out below. In summary,

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Sacramento-prescriptive-easement-attorneyUnder California real estate law a prescriptive easement requires the trespasser showing that they have used 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.” The way a property owner cuts off a possible prescriptive easement is by filing a suit for trespass or ejectment. But an action for trespass is designed to protect possessory –not necessarily ownership– interests in land from unlawful interference. As the landlord does not have a right to possession during the lease term, he may not bring an action for trespass. The prescriptive right does not arise against an owner that had no possessory interest in the land during the five-year period. What happens when the owner has leased the property? The tenant has the right to possession, not the owner. It appears that, in California, even if the owner has a moment of possession, such as between leases, a prescriptive easement may be created.

In King v Wu, a neighbor poured a concrete driveway partly encroaching on the neighboring property. The strip of driveway on the neighboring property (prescriptive strip) is approximately eight inches wide and 90 feet long. Many years later the property suffering the trespass was sold, and the new owners began constructing a metal guardrail over the prescriptive strip. Three days later the Kings filed a complaint seeking to quiet title over the prescriptive strip.

Sacramento-prescriptive-easement-lawyerThe owners raised one defense—that the property had been “continuously rented out,” and thus, as landlords, they had never been in possession over a period of five continuous years, and could not have filed an action for trespass or ejectment during that time. The owners had several successive leases with different tenants.

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In quiet title actions a common defense is the statute of limitations – has the plaintiff waited too long to file suit? Generally, the clock does not run while the defendant is in “undisturbed possession.” But what that means is often disputed in these cases, and there are no bright line rules. In a recent decision from El Dorado County, a South Lake Tahoe landowner was disappointed to learn that recorded documents are not sufficient to ‘disturb possession’, and the claim was not barred by the statute of limitations.

Sacramento-quiet-title-attorneyIn Kumar v.Ramsey (71 Cal.App. 5th 1110) Walker sold property on Dundee Circle in the City of South Lake Tahoe, California, to Kohs, reserving for themselves 23,188 square feet of land coverage. Land coverage rights consist of the right to place manmade structures on a certain parcel of land. These rights may be transferred in whole or in part to other parcels, granting purchasers the ability to build structures on their properties. Applications to transfer coverage rights are reviewed by the Tahoe Regional Planning Agency (TRPA).

The property was lost to foreclosure and then bought by Plaintiff Kumar. Prior to purchasing the property, Kumar conducted a title search which revealed multiple transfers of portions of the reserved coverage from Walker and Kohs to third parties between 2006 and 2007. As a result of those transfers, a TRPA tracking sheet indicated that the reserved coverage had been reduced to 6,959 square feet before Kumar purchased the property. Kumar understood that when he purchased the property, his purchase included the remaining 6,959 square feet of reserved coverage.

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A real property title defect will prevent you from selling your property or eventually cause future problems. When there is an issue regarding title to real property, a quiet title action is pursued which results in a court order clarifying the parties’ rights and interests. Such issues include ownership, and rights to ownership, removal of liens, boundaries, easements, licenses, and options. If a defendant who has a potential claim cannot be located or served, the court may order that they be served by publication of summons. The legal requirement is that the publication must “particularly describe the property,” plus provide its “common designation.” In a recent decision out of Riverside, the plaintiff was disappointed to learn that publishing just the Assessor’s Parcel Number did not qualify.

Sacramento-publish-summonsIn Douglas HUMPHREY v. Peter D. BEWLEY, the trial court ordered service of the summons and first amended complaint by publication. Humphrey filed proof of service by publication. In September, 2014, at Humphrey’s request, the trial court entered the default of all named parties.

In a quiet title action, “Whenever the court orders service by publication, the order is subject to the following conditions: “….The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted.” (Code Civ. Proc., § 763.020.)

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Electronic signatures are commonly used in California, especially with real estate contract documents, and are accepted by real estate brokers and escrow officers. But what happens when there is a dispute and the person who supposedly e-signed denies doing so, claiming that the signature was forged? That was the case in a recent decision out of San Diego where a homeowner claimed that they did not sign a financing contract for solar panels. The solar company never proved that the “docusigned” electronic signature was the plaintiff’s by explaining the process used to verify the signature.

Sacramento-e-signature-real-estate-contract-attorneyIn Rosa Fabian v. Renovate America, Inc., Renovate made an unsolicited phone call to Fabian about solar panel financing. Fabian was never presented with any documents to sign, claiming that all communications were over the phone.

The court found that Renovate met its initial burden to show an agreement to arbitrate by attaching a copy of the Contract to its petition, which purportedly bears Fabian’s electronic initials and signature. Because Fabian declared that she did not sign the Contract and the e-signature was forged, however, Renovate then had “the burden of proving by a preponderance of the evidence that the electronic signature was authentic.

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A quiet title action is brought to establish, or “quiet”, an interest in real estate between adverse parties. One can establish any interest in property or cloud upon title. (CCP §760.010) A common goal is to establish title by adverse possession. Adverse possession is a way of acquiring title to real property through continuous possession or use for a specified period of time. One of the elements required to prove adverse possession is that the possession or use must be “hostile to the owner’s title.” What happens if the adverse possession occurs on property with a deed of trust recorded, and the lender forecloses? In a recent California decision, the adverse possessor lost because the adverse possession did not count against the Lender until the lender acquired the property at the trustee’s sale.

Sacramento-Quiet-title-attorneyIn Charles Scott Bailey v. Citibank N.A. owners of property in Kern County had a deed of trust. They went into default and a Notice of Default was recorded, so the owners filed a series of bankruptcies. Apparently, the lender never completed the foreclosure, the bankruptcies concluded, and the owners walked away from the property. Plaintiffs, seeing it empty in 2013, saw that as a green light to take possession and pay property taxes. Citibank became the successor to the original deed of trust in 2017, and recorded a new notice of default, foreclosed, and became the new owner in 2018.

A few months later Plaintiffs filed their quiet title suit. There was much hubbub in the courts, a default & judgment for quiet title by adverse possession, the default judgment set aside, and appeals. For our purposes, an issue on appeal was whether, as a matter of law, plaintiffs’ possession was adverse to Citibank for the required five-year period.

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In California, a third party who acts in reliance on a quiet title judgment retains its property rights even if the judgment is later invalidated as void, as long as the third party qualifies as a bona fide purchaser for value. The third party must do so without knowledge of any defects in the judgment. But “knowledge” is a slippery term. Does it mean actual knowledge, or include “constructive” knowledge? is a legal concept that, in real estate, generally applies when the document must be recorded as prescribed by law. The buyer may not have seen it, but the law treats them as if they had. In a recent decision out of Inglewood, CA, the court decided that they must have neither actual notice or constructive notice. This decision is interesting because the buyer would have had to do some digging (and actually did obtain title insurance) to realize there was a defect.

Quiet-title-judgment-attorneyIn Tsasu LLC v. U.S. Bank Trust, N.A the court had a complicated series of facts.

– Celestine borrowed money from CIT, who assigned the deed of trust to US Bank. It was then assigned to DLJ.

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California law provides enhanced damages when someone harms a tree on another person’s property. The tree is owned by the owner of the real estate. There is a provision for doubling the damages incurred for harm caused to timber, trees, and underwood, and trebling it if the harm is intentional. (Civil Code section 3346.) A statue can double the damages for harm to a tree. (Civil Procedure section 733). However, both statutes specify enhanced damages for “trespass.” In a recent decision, a party decided to build a house, but roots from the neighbor’s tree was in the way of the foundation. So they cut the roots killing the tree. The tree owner was disappointed that this did not qualify for treble damages.

sacramento-neighbor-tree-attorneyIn Raymond Russell et al., v. Cornel Dorin Man et al., a ‘massive” Jeffrey Pine (85 feet tall, 40 inch d.b.h.) was located on the property line between the two parties in Big Bear Lake. The defendants built a house on their property, though according to the city’s development code they should not have been allowed to. Almost any house on the property, no matter how configured, would be too close to the tree’s “critical root zone.” Under the Big Bear Development Code, it was forbidden to dig in a tree’s “critical root zone.” This was defined as a circle around the tree with a radius of one foot for every inch of the tree’s diameter at standard height (four and a half feet above the ground, which used to be called “breast height”). Here, the tree’s diameter at standard height was 40 inches, so it’s critical root zone had a radius of 40 feet.

Defendants had hired a draftsman who prepared the building plans and then submitted them to the city. Those plans misrepresented the tree as being behind the proposed house, rather than to the side. Even according to the plans, however, the house was within the tree’s critical root zone. In fact, there was no way to build on the property without killing the tree. Nevertheless, the city inspected the site and issued a building permit.

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