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  1. #1
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    Oct 2015
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    Default Can a Neighbor Excavate a Common Driveway to Build a Home on a Vacant Lot

    My question involves an easement in the state of:California

    Yes, this sounds odd - so I will explain. My wife and I bought a house 15 years ago (2000) that shared a driveway with an parcel that was/is an empty lot. In 2002, the lot was purchased by our "neighbor", though he has yet to even begin construction. Our common driveway is about 350 ft long, up a steep hill with a 20% grade. It is 19'-20' wide and has a small turn around at the top that serves as the entries to each lot's garage(s). We have a garage, our neighbor does not yet have one. The property lines of the two lots extend down the center-line of the driveway - each parcel owns 10' to either side of the center. Both properties have easement rights to the entire road - whether they own their portion or not. There is an additional 20' of "access easement" to either side of the roadway. The top - or the "turnaround" has reciprocal easement rights as well. This was all established in 1992 when the subdivision was adopted by the city - there is no written agreement between the two property owners.

    In 2011, the neighbor went through city planning to build a home - was approved on every account, despite our objections to the home he was building. We mainly objected to the fact that the owner had no plan to stage construction, since the only way to access his land is via this 19-20' driveway. To top it off, he wants to re-grade the top of the driveway to better suit his property (frankly I do not understand why). In 2014, the neighbor was approved for a building permit, but did not pay the fees for it's issuance until mid 2015. So this has been going on for about 12 years or so - nothing has been built and the neighbor still intends to do extensive excavation work on his property (and driveway). While he is a contractor, I don't believe he has ever built a house before - or anything much larger than a bathroom.

    A couple of months ago, he put up a locked construction fence right in in his side of the turnaround at the top of the hill. It's too late to build this year (rainy season better come soon!), but he keeps it that way. So there is a locked fence blocking what we and others have easement rights to use to turn around. We have been lucky in that we have been able to squeak by. Others have not. We had a furniture delivery the other day and the truck could not come up the driveway as they could not turn around. We had to rent storage (quickly) locally - and have them leave it there. To top that, my wife is disabled - with limited neck mobility among other things, so she needs more than a dime to turn out into the driveway. She feels a prisoner in her own home - and I don't blame her. To again top it off, the neighbor is now filling the turn-around area with junk - like old toilets (lots of them), wood, pipes, etc. We are talking about a neighborhood where the average house sells for $1.0M-$1.5M - and this is not the norm. The police say its a civil matter too.

    This even gets more complex. We got fed up earlier this year and purchased another house which is currently being remodeled and will be finished in a month or two. We plan to move into the new one, fix and sell the old one, and use the proceeds from the sale to pay off the "bridge" mortgage" on our new house. Given the old toilets and all the other junk at our current house, this creates a situation which tremendously devalues it in a sale. We also will likely not be able to move out as the turn around is blocked - not can a buyer move in. If the "neighbor" does start to build, he will dig up the roadway so badly that there will be no way to show the house to a prospective buyer. Basically we are between a rock and a hard place.

    Yes, I am about to hire an attorney, but the first thing his attorney will do will be do slap a "lis pendens" on our house (pending litigation) - and no one will ever even look at the house. Granted we can do the same to him, and it will stop him from getting a construction loan - but he is not likely to get one anyway given his apparent lack of means, the lending climate (no one around here is getting loans) and the enormous house he wants to build. I have had two contractors estimate that it would cost him easily $2M to build the house he has proposed on his land.

    So we are not only between a rock and a hard place - but he wants to construct what I say is "building a ship in a bottle". We will have extended periods of non-access to our own home - even possibly when it is time to move or sell. My wife cannot possibly walk down the roadway (if we are stuck here) as it is too difficult for her disability. This is a private driveway so the city says this is a civil matter. We have spoken with the "neighbor" on countless occasions and he doesn't seem to care one bit about our rights as homeowners - just about his right to build. We recognize and acknowledge his right to build, but also feel that we have a right to live (and sell this place!). There is no reasoning with this man - we have tried over and over again. We have talked this issue with him for countless hours and all he says is that he has a right to build. I seriously don't think he has a clue to what an easement means. Ironically, we just want to sell our home and leave. But even that is endangered. If we leave and don't sell our current home, we have a year before we run out of cash to support both homes (new and old) at once. We could not even rent it as no one could be sure they could ever get in or out of it. This is the type of situation they make TV movies out of!

    Any ideas, insights, suggestions, etc.? I know he is legally a "private nuisance", but to get a court order to stop him and sue him will start at $50K. Meanwhile we will run out of cash with a home we either cannot leave or sell - and another one waiting for us to move in. Ironically the new home is single floor to make easier access for my disabled wife. None of this will come to fruition given current circumstances. Basically we are coming down to our last $50K of free cash to fight this man in court. We will likely win - but also lose too (as I stated above). The whole situation is nuts and basically insolvable. Dealing with a rational person, there could be some home. But this person is not rational.

    Thanks for your time reading this!

  2. #2
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    Mar 2013
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    Default Re: Can Neighbor Excavate Common Driveway to Build a Home on a Vacant Lot

    Sorry, but you need a lawyer.

    The neighbor is preventing you from accessing the easement to which you are entitled. The repositioning of the fence seems to be the ONLY recourse you have. You can't stop him from building whatever he wants to build that he can get a permit for.

    You'll have to sue him in court or you stay stuck with the status quo.

    You don't say how much equity you have in the current home but if you price it well below comparable homes (dirt cheap) you'll get a buyer pretty quick in spite of the situation.

    If you have to price your home below what you owe on it so that it will sell quickly, it might be wiser to use your cash to do that and get out rather than spend it on litigation.

  3. #3
    Join Date
    Oct 2015
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    4

    Default Re: Can Neighbor Excavate Common Driveway to Build a Home on a Vacant Lot

    It's not that I disagree with you, but rather that I am in trouble if I do, and in trouble if I don't. I can give numbers here as we are all anonymous. The numbers are high when compared with. Most, but anyone can get financially decimated - no matter how many zeros the price tag has. Our current house (the one with the problem) is almost totally owned. We have over 95% equity on a $1.4M house. A distressed sale (I.e. - as is - might make us have to drop it to $800K). We easily lose $1/2 million. On the other hand, I owe about $1.4M on the new house. Had this clown not turned this into a circus, I would come close to breaking even. Where the financial stress comes is in supporting two (relatively) high end homes. I will also have to carry the mortgage that I don't pay off because I can't sell the house or distressed sale it, two tax bills, two of everything. And, as I said before, I can't rent a house that I can't guarantee access to. The biggest problem is that there is only one way in or out of this place. With 2 acres and horrific California restrictions, I can't even make another road out of here.

    If I bring ANY legal action against this guy, my house is "marked" as litigation pending. No one will come near it - possibly in a distressed sale. Now comes the part where I have been stupid. I assumed when we bought the new house that I had the equity in the old one. It never crossed my mind that we may not be able to sell it for years. The "neighbor" had not even put up a sign in 3 years after planning approval. He then put his house on the market for 2 months, and took it off the market and declared he would build. I figured that he'd never build a house investing almost 3M, when it's FMV would be $1.8M at best. I don't think he's smart enough to know it will cost him that much either.

    Even any non-court legal interaction will be a disclosure item. So there is no way that I can get out of this without losing a fortune. If I sell more equity to cover the loss, I will drop my income to the point where I will not be able to comfortably pay for the new house.

    My only hope is to win a civil case - say ... "Private nuisance", and get awarded damages and attorney fees in a settlement. But that means risking virtually everything. I can't do that with a disabled wife. Yes, I would likely prevail in court, but the costs of getting that far can bee very steep. In my early 60's, that's a big risk to take - just because some clown wants to make trouble. Private access driveways and roads are situations where everyone loses. I don't think he has much to lose. I can lose a lot - with only a small chance of getting out of this unharmed.

    But ... To answer your comment.... if I take the loss (easily $1/2M), that is more than the cost of litigation. At 62, do I want to spend my next (hopefully) productive years fighting a battle which can't get me far. It's lose -lose, unless this "neighbor" is so short on funds that he backs off until I'm out of here. I've dealt with him so long that I know he is nuts enough not to back off for 8 months. He wouldn't even listen if I told him. I wish I was wrong on this one too!

    Oh, one last thing. He can't kick me out of the easement now, and can't kick me out even if he builds. We both have equal rights. Building gives him no special privileges to incarcerate me. But the courts won't care beyond a point. I can keep hauling him back and forth to court with restraining orders, as I'll be long broke before a judge finally throws a fit and tells him to stop being in contempt. The moral of this story is never get into a situation where civil remedies are the only way out. If this were public access, etc., I would have made sure he was thrown in jail a long time ago.

  4. #4
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    Default Re: Can Neighbor Excavate Common Driveway to Build a Home on a Vacant Lot

    Look, some people are bastards until they get handed a lawsuit. Then they think twice about spending money on a lawyer or behaving themselves.

    So far, you've listed plenty of excuses for not filing a lawsuit.

    You do what you want to do but I think the best bet is to seek an injunction to have him take the fence down or reposition it so you have access to your easement.

    You're not entitled to anything else and I don't see where that's going to affect the ability to sell the property.

    Consult an attorney.

  5. #5
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    Oct 2015
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    Default Re: Can Neighbor Excavate Common Driveway to Build a Home on a Vacant Lot

    Well yes, I got a name of a good land use attorney from the contractor who is doing the work on my new house. I think he will be a good referral. If he wants to get a court order, and I believe he wild, then I will. I'm not shy of litigation and have been in the midst of it lots of times. I am skeptical of lawyers, though. But this one I trust, because I trust the source.

    My guess is that the neighbor can't afford to build the house, which is why he has taken 12 years to get to this point and has even let all or most of his permits expire (though he can get them activated easily). Since he has done this fence/toilet thing for 3 months blocking a turnaround and easement - that qualifies him for "private nuisance." If he can be found to be hostile enough about it, then he could get damages assessed in more than one form. He may take the fence down and walk away.

    If my attorney tells his attorney (a known shark and SOB) that we are looking to move - he would likely advise his client to quiet down for several months until this whole thing goes away. After 12 years - 6-8 month more isn't going to hurt him, and I don't think he still knows what he is doing.

    If I'm wrong, I fire sale the house and live at a noticeably lower standard of living. So yes, thanks.

    - - - Updated - - -

    Just an addendum - since I can't edit my last post. Its now the next day (I work from home) - and the neighbor is out there doing something on the property. He has no building permit posted, etc. His fees are not even paid. This guy seriously has no regard for the law.

    I have a call in to the attorney and will see what he says. I don't relish the possibility of spending $50,000 in legal fees that I don't have - to fix this problem.

    The real problem was created by the City when they created our two lots in 1992. These two lots were created when the subdivision was created to give back to the original owners of the land to do as they wished. It was assumed (wrongly so) that two houses would be built up here by the same family at the same time. Our house was completed in 2000, and he other house is 2015+. Code has changed, etc. (California does that a great deal). As a result, the access to these properties is such that there is no way to build on one without totally fouling up the life of the other parcel holder if they live there. The access road/driveway is too small to do major construction unless the whole area is unoccupied.

    We moved here first. I feel that gives us some rights. But the bottom line is that when the city created these lots - they created a situation where two houses could not be built at different times without destroying access for the first home built. There's also no place for the second home (his) to stage construction. He will (and intends to) use "private open space" (a California thing), to stage construction. You're not supposed to do that - but again, no one wants to enforce it. All this is just a technicality to them. Unfortunately since the "neighbor" is irrational - there is no way we can approach the city together with this. I have never seen a more difficult situation for building in my life - especially in an area with fairly upscale homes. And the city does not care! They know that no one can sue them, so they just want to let it play out.

  6. #6
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    Oct 2015
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    4

    Default Re: Can Neighbor Excavate Common Driveway to Build a Home on a Vacant Lot

    Going to add to this one..... I went to the neighbor and asked him to move the fence and he told me that he needed it to "keep my stuff." Now if that's a lame excuse, I don't know what is.

    I've talked to a land use attorney - and all seems straightforward - but the injunction has to be accepted as permanent. If it goes to arbitration - this guy will whine until I go broke carrying two homes.

    The big question is - whether the city can approve of a building project that can only be built by blocking that access easement to a large degree (even entirely at times)? Is this a valid argument in court - that the "city said I could do it?"

    To build on his lot only requires minimal blockage of the easement. To build what he has proposed requires total blockage of the easement. Remember, the easement is the only way in or out for us. Where does the city's authority begin and the state easement law kick in? Or can the city allow this guy anything he wants?

    Just as an aside, we objected officially to the city about the fact that we would be blocked when this was in the planning stage and we were completely ignored. No attorney has ever come up with an answer to this question (if the city can "allow" him to violate the easement). No one can ever find out a case where it has been done before it is that odd.

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