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  1. #1
    Join Date
    Nov 2008
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    3

    Default Property Line Violation Pre-Purchase in California

    My question involves real estate located in the State of: California.

    First, we're first time home buyers, so i'm trying to sweat the details.

    we're in the contingency period of an offer on a house and noticed the neighbor's garden appears to clearly cross the property line between their house and the seller's house. (there is a 5ft setback, and about 10ft between houses, and about a 6-8ft wide garden). the neighbor's have lived their ~2yrs, the seller, 55yrs.

    looking around the neighborhood shows multiple telephone poles where the property lines appear to be, where a fence separating other neighbors is terminated by telephone poles. there is a telephone pole that seems to be placed directly on the property line between neighbor / seller (re: setbacks) adjacent to garden, highlighting the encroachment. The title shows a rectangular piece of property for both neighbor and seller, with no modification to property line near the garden.

    I would like to resolve this prior to 'releasing the contingencies'. any suggestions? I've read on-line that there is a worrisome thing called a 'prescriptive easement' which requires: open, notorious, hostile, and continuous possession for 5yrs after which hostile party can claim the land. is this true? does that apply here?

    is there anything i can do BEFORE we close that would ensure we have the right to the property we think we are buying?

    i'm wiling to let them keep the garden now, providing if we ever want to put up a fence they can't claim it, and the worst they can do is dispute the property line position. if we have to do a survey at the time we put up a fence that's ok if that's the worst case.

    i just want to be proactive...

    thanks,

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Property Line Violation Pre-Purchase in California

    if you are willing to allow the garden for now, you really need a survey now to prove where the line is. If you want to enter into an agreement where you give permission for the garden until such time you revoke the permission, get it in writing.

    If the neighbor refuses to sign such an agreement, I would see it as a sign of future problems and expect the seller to settle this before closing on the deal. If he cannot remedy the situation, I would walk away.

  3. #3
    Join Date
    Nov 2008
    Posts
    3

    Default Re: Property Line Violation Pre-Purchase in California

    thanks. could the agreement say something like:

    "both parties agree the property line between the properties as _______ and ________ is and will always be as specified on the parcel map on file with the city as of Nov 1, 2008, regardless of the location of bushes, fences, gardens, and the like"

    have both sign, and we're good to go. i'm looking for something easy, clear and one-time. do i have to say anything like:

    "in the event of a disagreement, both parties will agree to the results of a survey to identify the property line."

    seems redundant, but clears up how to resolve a dispute, though leaves the quality of the survey as an outstanding item...

    thanks,

  4. #4
    Join Date
    Dec 2007
    Location
    Ohio
    Posts
    2,006

    Default Re: Property Line Violation Pre-Purchase in California

    The problem with the way you have it written:
    "in the event of a disagreement, both parties will agree to the results of a survey to identify the property line."
    IMHO, infers that you will get the survey done when and if there is a problem and that could be a problem as your asking them to agree with something that is not yet there. Get the survey done first so they acknowlegde that they are aware of where the property line is now.

  5. #5
    Join Date
    Nov 2008
    Posts
    3

    Default Re: Property Line Violation Pre-Purchase in California

    understood. however, it should be obvious to all as to where the property line is. there is a clear violation measured in feet, not inches. if the neighbor doesn't see it, [jk] is correct, it's a harbinger of future issues...

    you're helping me clarify my thoughts.

    I my goals are:
    a) to get the neighbor to agree that the title documents definitively show where the property lines are, regardless of fences, gardens, etc. currently in place,
    b) to try and cap the cost of any propertly line disagreements at the cost of a survey,
    c) give the neighbor my permission "now" for his flower bed encroachment (of whatever size it currently is), but convey we can revoke that permission in the future if we want to.

    i would like to do this :
    a) w/o creating a bad first impression w/ the neighbor, and
    b) w/o paying for a survey to definitively show where the property line is

    i have been a bit nervous about the 'prescriptive easement' concept in CA. do you know if the open,notorious,hostile,continuous conditions are RESET when a new owner purchases a property?

    thanks!

  6. #6
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Property Line Violation Pre-Purchase in California

    Not knowing where the liine is when you make an agreement can throw a lot of confusion into the situation. What happens if you were wrong by 5 feet as to where you thought it was, or the neighbors the same.
    When it came time to clear the road, so to speak, there coule be a lot of disagreement as to what was meant.

    Best thing is to make it clear NOW with all knowing exactly what the future holds.


    as to the pres easement question; I don;t know offhand.

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