need new utility easement

[tom31415926]

What is the name of your state (only U.S. law)? California

I recently decided to change my electrical service from overhead to underground. I dug the trenches and installed conduit according to the specifications of my local utility and passed their inspection. However, when the utility company documented the location of my trench, they said it was partly on an adjacent property. This was due to the fact that the trench was quite close to a fence, and the fence (according to the utility) is about 3 feet off the real property line. The utility company will not pull wires until the owners of the adjacent property sign and easement for 3 feet along their property line.
At this time, the owners of the adjacent property are “flipping” the house. It is owned at present by investors and the house and grounds are being improved. The process is nearly complete and the house is listed on the market. The adjacent property comprises two parcels that have been merged for tax purposes and that could be “unmerged” easily (without a parcel map). The two parcels are being sold together. The boundary line that is the subject of this issue is between my property and the undeveloped parcel.
The fence that is apparently in the wrong place has stood for at least 30 years. I have taken care of the property inside it (including weed control and plantings), believing it to be mine for the 8 years I have owned the property.
The present owners of the adjacent property were asked by the utility to sign a utility easement for 3 feet along the property line with me, which would include the trench. The owners of the adjacent property refuse to sign the easement agreement and I cannot complete my project.
Before I communicate directly with the owners, I would like to know what legal points are in my favor and which are not. I do not want to make threats. I would like to have an exchange of information, after which the owners of the adjacent property and I both know the issues.
I will present the issues that I think are in my favor:
1) The trench is inside the fence which has stood for a long time. Some have told me that since the fence has been there over 5 years, that I now own the property. I do not believe this to be correct; this would be “adverse possession” under California law, and certain conditions have to be met (e.g., that I paid the taxes on the property inside the fence). It may be the case, however, that I have established an easement for certain uses of the property. Could this easement include utility service?
2) The owners of the adjacent property are obliged to disclose this unresolved issue to potential buyers. It might be better for them to simply sign the easement, and its appearance on the title report will be completely ordinary and not deter potential buyers. Obviously, I will discuss this issue with the new owners, and they may be concerned that it was not disclosed to them before the sale.
3) I read somewhere that in the case of a backyard fence discrepancy, both parties have some rights. If this is so, what rights might I have? If I could take an action that would delay a sale of the property, the present owners would have strong motivation to sign the easement agreement. My hope would be that we could agree and that I do not delay a sale.

Thank for the help!

 

[Zigner]

You don't get to just force an easement on them. Move your lines.

ETA: In order to claim an easement for the lines, the lines would have had to have been there for some time. They have not.

 

[154NH773]

1) The trench is inside the fence which has stood for a long time. Some have told me that since the fence has been there over 5 years, that I now own the property. I do not believe this to be correct; this would be “adverse possession” under California law, and certain conditions have to be met (e.g., that I paid the taxes on the property inside the fence). It may be the case, however, that I have established an easement for certain uses of the property. Could this easement include utility service?
2) The owners of the adjacent property are obliged to disclose this unresolved issue to potential buyers. It might be better for them to simply sign the easement, and its appearance on the title report will be completely ordinary and not deter potential buyers. Obviously, I will discuss this issue with the new owners, and they may be concerned that it was not disclosed to them before the sale.
3) I read somewhere that in the case of a backyard fence discrepancy, both parties have some rights. If this is so, what rights might I have? If I could take an action that would delay a sale of the property, the present owners would have strong motivation to sign the easement agreement. My hope would be that we could agree and that I do not delay a sale.

1. You have not "established an easement" for anything. If you have adversely possessed the property up to the fence for the required number of years, you still have nothing until you convince a court you should be granted title to the subject property.
2. Sounds like blackmail on your part... they can simply tell a potential buyer that you are encroaching and let them deal with it, or they could take you to court.
3. You have no rights unless a court grants you rights. Don't count your chickens before they hatch.

If your encroachment hinders their sale, or causes them to lose a sale, they just might sue you for their damage.

 

[latigo]

What is the name of your state (only U.S. law)? California . . .

Either relocate the placement of the service line within your deeded boundaries or file a quiet title action to claim the strip lying between your deeded property and (the five plus years established) fence line. (See California Civil Code Section 321)

As far as the payment of taxes on the affected strip for the five years as required, if you've paid those assessed against your lot as deeded, which you obviously have, it will satisfy.

If you want to stymie a sale of the adjoining property a Lis Pendens recorded in junction with the QT lawsuit will likely do it. Which you must do anyway.

But you will need an attorney. An action to quiet title to real property is not something a layperson should attempt to do.

They are a pain in the butt! Even uncontested they are miserable. Every time I took one on I swore it would be the last.

 

[Ozark_Sophist]

Start with a survey. Perhaps utility company is wrong. Have surveyor locate and document location of fence, trench, and property line.

 

[justalayman]

I second Ozard sophists advice. Before doing anything, you must discover the truth.

Then, since an AP suit is often expensive and time consuming, I would suggest the most efficient route to not delay your project would be to grab a shovel and install a new run of conduit or relocate the first one. If you want to fight for the land after your project is completed, have at it.

 

[154NH773]

The fence that is apparently in the wrong place has stood for at least 30 years. I have taken care of the property inside it (including weed control and plantings), believing it to be mine for the 8 years I have owned the property.

I agree with others that have suggested a survey as the first step, as obviously you do not know where the actual boundary is.

You say the "fence is in the wrong place", however; if it is not your fence there is no "right" place. A landowner is not obligated to place his fence on the boundary.

To claim the land, you will have to conclusively prove three things; that you have adversely possessed the property for 5 years, meeting the following criteria: (California Civil Code Section 325)

land is deemed to have been possessed and occupied in the following cases only:
(1) Where it has been protected by a substantial enclosure.
(2) Where it has been usually cultivated or improved.

You do not meet the first, so you must meet the second. Can you prove that you have done so? What proof may be offered to refute your evidence?

Personally, I wouldn't risk going to court. If you lose, and there's as good a chance you will as not, and if you've held them up, you could be sued for damages.

 

[tom31415926]

thanks for the information

I would like to thank all respondents for the information. I do not want to be "heavy-handed" with the adjacent property owners; I just want all parties to know the things that _might_ happen. An analogy would be when parties go to a settlement conference. The mediator or judge pro-tem will make sure that parties understand the things that _might_ happen if the case does not settle.

Question: 154NH773 states that I do not meet the first of two conditions, that the land has been protected by a substantial enclosure. The fence would not be considered a "substantial enclosure"?

By the way, I have about 65 feet of 4-foot deep conduit (buried already) that I'd have to move, so re-locating would be quite an undertaking.

I will point out to the adjacent owners that the trench is along their undeveloped lot (the property comprises two lots) and that I have installed a "pull box" at the boundary that they are welcome to use for electrical service. (Before I can use this box, I would have to deed it to the utility company, so I could not restrict its usage. but it was installed on my nickel!)

I asked the utility company to document the trench location and prepare easement documents in advance of digging (the trench does cross the property of a different, cooperative neighbor). Had they done so, and told me they had to prepare another easement agreement, I would have known there was a problem and avoided this situation. Ultimately, it is my responsibility to know where I'm digging, but I had not considered the possibility that such a long-standing fence could be wrong.

I will get a survey. Not having one has already cost me more!

Tom

 

[154NH773]

Question: 154NH773 states that I do not meet the first of two conditions, that the land has been protected by a substantial enclosure. The fence would not be considered a "substantial enclosure"?

Without seeing the fence it is impossible to speculate how a court might rule. If I understand correctly, is not your fence, it was installed by your neighbor. That would seem to have a great impact on whether a court would agree that YOU adversely possessed the land. As I said, your neighbor was not obligated to place his fence exactly on the boundary.

All the rest of your "complaints" are immaterial to the AP question. Your expense was at your peril and would not be taken into account at all.

Whether your neighbor agrees to an easement for you is up to him. If he doesn't want to use any of your improvements, that's his business. Your cost to install is also immaterial to the whole discussion.

The utility is normally not responsible to research the deeds, other than to gather information to write the utility easements. They normally never perform a survey, and rely on the property owners for boundary information.

If you will be deeding the pull box to the utility, there's no way you can restrict their use of it, and it no longer becomes a bargaining chip. When I installed my underground service (1000 feet) through my neighbor's property, I retained all ownership of the conduit. Although the utility owns the wires, they cannot cut into my conduit for installation of someone else's utility without my permission. My case is different than yours, because I have a utility easement across their property (long story).

You might ask if the utility has an existing easement for the neighbor's property. Most utilities write easements so broadly that they have rights to run pretty much anywhere they want once they have an easement. So, if your neighbor's property has utilities already, there's a good chance that the utility company already has an easement that would accommodate your conduit.

I do not want to be "heavy-handed" with the adjacent property owners; I just want all parties to know the things that _might_ happen. An analogy would be when parties go to a settlement conference. The mediator or judge pro-tem will make sure that parties understand the things that _might_ happen if the case does not settle.

This explanation does not mitigate your liability if you hold up their sale. You are encroaching on their property illegally unless a court says otherwise.