Articles Posted in property law

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.

In 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.

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.

In 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,

In California real estate law, there are situations where the boundary lines as observed on the ground do not match the deed description. Disputes arise when someone has a survey completed, and does not like where the fence or other marker is located, and contact a real estate attorney. There are several legal theories which may resolve the matter, such as adverse possession, prescriptive easement, practical location and agreed boundary. Little known is the relationship between the last two and how they had evolved.

A practical location of a boundary line is simply an actual designation on the ground, by the parties, of the bounds called for in the conveyances. It has also been said that when an uncertain boundary line is fixed by practical location it is binding. (91 A.L.R. 6th, 1, ‘2.) It shares traits with the doctrine of agreed boundary, and the early Supreme Court decision in of Martin v. Lopes in ruling for the defendant, stated “[m]anifestly, the elements of agreed boundary, or practical location, as it is sometimes designated, were not present.” (Martin v. Lopes (1946)) In 1959 the court again used similar language in Ernie v. Trinity: “It may be inferred that there was an uncertainty as to the true line at the time the structures were erected, which uncertainty was settled by practical location on the ground at that time and was agreed to by the then coterminous owners.”

In Nebel v. Guyer, the Third District reviewed a decision in which the parties marked off a boundary on a town lot by notching a fence on one end, and setting a pin on the other. The court found that the boundary line fixed as the west line of plaintiffs’ land controls over the description in the conveyance, since markings were made establishing the west boundary. Likewise, In Arnold, iron stakes installed by an owner of the parcel were accepted as marking the boundary of the lots. (Arnold v. Hanson (1949))

<big>In commercial real estate transactions, disclosures and representations are often heavily negotiated terms.  Sacramento real estate attorneys work with the Buyers and Sellers where the Buyer/Investor seeking complete disclosure and subsequent liability of the Seller, while the Seller seeks the opposite. In a recent decision, some investors were buying tenancy-in-common interests in an office complex and were provided with a Private Placement Memorandum that explained how expensive and risky the investment would be. But they claimed that they relied on representations of the selling agents instead.

In WA Southwest 2, LLC v. First American Title Insurance Company et al., The plaintiffs had sold an investment property and needed to complete a 1031 exchange to defer capital gains. They did so by making a tenancy-in-common investment in an office building in Tempe, Arizona. Involved in the investments were the defendants- a title company, a tax attorney, and the real estate broker. The property failed and was lost to foreclosure, and plaintiffs filed this suit. They claimed that they were misled by defendants’ misrepresentations regarding the sales load and risks of the investment (sales load being the fees, expenses, and commissions paid). Plaintiffs claimed that they would not have invested in the Property had they known that the total sales load percentage actually exceeded the 15 percent capital gains tax they had sought to defer.

At issue in this case was the statute of limitations– they made the investment in 2006, and filed suit in 2012. However, plaintiffs argued that the court should apply the delayed discovery rule. This rule delays starting the time running when until the plaintiff discovered, or had reason to discovery, the claim. In making this argument, the plaintiffs must show that they were reasonably diligent, but still could not have discovered it sooner.

Prescriptive easement law evolved from the problems locating property lines in rural areas. Traditional real estate law provided the concept was that, if you used your neighbors land, by running livestock across it, building a road on the neighbors side of the property line, or so other use, the victimized neighbor has five years to do something about it or the trespassing neighbor has established a legal right to continue that use.

Something different happens when the trespasser uses the land in exclusive way, such as by building a structure on it, or fencing it in. Courts are less likely to find establishment of an “exclusive” easement, in which the original owner no longer has rights in the land. By putting a fence five feet over the actual line, the trespasser could establish an exclusive right to use that five feet, even though he does not own the underling land.

The issue is a big problem in residential neighborhoods. It problem starts when a homeowner, for whatever reason, has their property surveyed and discovers that one of their fences is not on the line, but instead is set inside their side, reducing the size of the backyard. Has the trespassing neighbor established a right to keep the fence in its location, enlarging his yard? California courts say no -the concept of an exclusive prescriptive easement “has no application to a simple backyard dispute.” Based on this, the trespasser can be forced to move the fence back across the line.

However, it is common for both neighbors to move in with the fence already in place, and both live in peace ignorant of the problem. Improvements such as drainage, structures, perennial plants or trees may have been installed.
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