Novel Legal issue?

[Joe Potter]

I have what I believe could be a novel legal situation, and wish to receive input from anyone willing to comment on the situation, approach, possible avenues to pursue, and likely outcome. First, no legal action has been filed at this time, so I will be speculating about possible causes of action in the future. Here is a very brief history;

Person A (A) purchased a 20 acre parcel of land in a remote California subdivision in the early 1970’s, and immediately began exploring the surrounding unimproved parcels. Over a period of nearly 30 years he, and his parents, children, siblings, grandchildren, “family” (A+) all used two of the parcels (lot 1) and (Lot 2), owned by the same person (B),for access to a pond, as well as many other uses (cutting trees for firewood, target practice, hunting, etc.). In the late 1990’s (B) stopped paying property taxes on (Lot 2) and it was sold at public County tax auction to (A) in 2001. (A+) continued to use (Lot 1) and increased the types, and frequency of use over the next 20+ years. In 2022, the son of (B), person (C), came to the subdivision and spoke with (A). (C) told (A) that he had inherited (Lot 1) from (B) who was deceased, and that he wanted to sell it. (A) informed (C) that there were prescriptive easements on the land. (C) said he didn’t care, and would sell (Lot 1) without disclosing anything about (A)’s use of (Lot 1), saying, “ it will be between you and the new owner”. (A+ ) sent a letter to the realtor that had the listing , person (D), and informed (D) of the claim of prescriptive rights, and their duty to disclose. (A+) received a reply letter from a local attorney (E)in response, demanding that (A+) stop using (Lot 1), along with a cease and desist notice. A couple of months later, (A) acquired a copy of a grant deed transferring (Lot 1) from (C) to a buyer in Georgia (F). (A) sent a letter to (F) asking to speak with them about issues that might affect (F)’s newly acquired parcel. (A) then received a reply from (E) indicating that he also represented (F), and to stop using the parcel, stop harassing (F), and that (F) never wanted to hear from (A) again, or there would be litigation. It has now been nearly two years since the transfer/sale, from (C) to (F),and there has been no sign that (F) has visited the property. (A+) continue to use (Lot 1) for all of the earlier uses as well as for access to parts of (Lot 2). (A) never met, or saw (B) during (B)’s lifetime, and there is no evidence that (B), or (C) ever visited (Lot 1) or (Lot 2) during the last nearly 50 years.

(A+) is very familiar with California Prescriptive easement law, and feels that they have a solid, well documented case for multiple prescriptive rights on (lot 1), which can be considered an unrecorded ownership interest in the land, but not fee simple interest through adverse possession, because (B), and (C) always paid the property taxes on( lot 1). The real questions then are as follows;

If, and to what extent did (C),(D), and (E) have a duty to disclose material facts that affect the marketability, desirability, and value of (Lot 1), to a purchaser,(F)?

(A+) has a very strong suspicion that (C), (D), and (E) conspired to commit fraud, through non-disclosure of those facts. However, (A+) cannot prove that theory, because (E) continues to prevent contact between (A+) and (F) under threat of litigation. Only (F) knows what was disclosed at the time of sale. How can/should (A+) proceed, and how does this affect tolling of the Statute of limitations for fraud, and separately, for fraud with a realtor.

Does (E) have an unwaivable conflict of interest by representing the seller, and the allegedly defrauded buyer at the same time?

If, and to what extent can (A+) claim actionable fraud, as a result of the co-conspirators selling property that was partially “owned” by (A+)?

Because there are no “out of pocket” damages to (A+), could (A+) claim collateral damages, and then ask for punitive damages as a result? What kind of collateral damages would be possible?

Any other thoughts, or input regarding this case? Any pertinent case law, that can be cited for further research?

 

[Zigner]

If your hypothetical matter ever becomes real, then persons A-Z (inclusive) should seek legal counsel.

 

[Joe Potter]

Zigner, Thank you for your reply. In a sense its already real, we are just waiting for (F) to show up and start legal action. Its only a matter of time. We have been researching prescriptive easement law for years in anticipation, and intend to represent ourselves pro se. The nearest attorney is over 100 miles away and we are retired, and low income. So, we are here just looking for input. Thank you again, that is good advice. J.

 

[Taxing Matters]

I have what I believe could be a novel legal situation, and wish to receive input from anyone willing to comment on the situation, approach, possible avenues to pursue, and likely outcome.

It's not actually all that novel. These are the sorts of issues that come up often in prescriptive easements and adverse possession cases. For A, the main issue will be whether he/she as the evidence to defend against ejectment from the property should the record owner pursue it. A really needs to see a real estate attorney in CA for advice on what rights, if any, A has in the property and what A should do going forward. That determination is going to require a review of the various deeds and other recorded documents, the evidence A has of his/her use of the property and the time period of use, the records of the property taxes paid, etc. That's not something that's amenable to a resolution on an generalized online forum like this one. Now that A has been told by the record owner that he/she wants A off the property that starts the process for the record owner to assert his/her rights to the property and the earlier A gets good legal advice the better he/she will be prepared to deal with what's coming. This is not something that is a good pro se project. There are a lot of details you'd need to know to successfully defend against F's claim, including the rules of civil procedure, the rules of evidence, and the details of property law in California, including relevant court decisions.

This isn't something that can be done in small claims court, so you'll be dealing with the more complex procedures and requirements of a regular court. Facing an attorney who is experienced litigating this kind of matter puts you to a disadvantage. You may wish to check out legal aid organizations and law schools in the state who may be willing to provide you with low cost or free representation considering your are low income. The CA bar may provide a list of attorneys who do pro bono work in real estate matters. You probably can start with a phone or video call with the organizations/attorneys you contact so you'd not have to drive all the way to where they are located just to find out what help you may be able to get.

 

[Joe Potter]

Taxing Matters, Thank you so much for your reply. I didn’t mention the Pro Se issue because I didn’t really want to go there. (A) has some successful litigation experience in Superior Court, feels confident, and is committed to representing himself in this case. I hope that it is ok if I go through your reply, and respond with a couple of questions?

These are the sorts of issues that come up often in prescriptive easements and adverse possession cases. Can you think of any cases that would be helpful to research?, if so can you post them?

The main issue will be whether he/she as the evidence to defend against ejectment from the property should the record owner pursue it. (A) has lots of evidence going back for decades, with photos, videos, aerial photos, satellite imagery, eye witnesses, even dendrochronologic analysis of tree stumps, as well as physical features on the ground. Can you think of any other kind of evidence that would be helpful? Something (A) may have forgotten?

The last part of your reply mentions getting help from low cost/pro bono legal providers. That was super helpful. (A) has investigated that in the past, but has had very limited success finding that kind of help. One of the most important areas that (A) could use help, is with research. Do you know, or can you think of places that (A) might find someone (not necessarily an attorney) to help with case law research?

Again, thank you so much for taking the time to reply to the post. Lots of great advice that I appreciate very much! J.

 

[quincy]

Holy Alphabet Soup, Batman!

To break it down and see if I understand:

20 acres of unimproved parcels were purchased by A. Lot 1 and Lot 2 were owned by B but used by A+.

B (and son C) sold Lot 2 to A, and Lot 1 to F.

A+ wants to continue using both Lot 1 and Lot 2 and is, in fact, continuing to use Lot 1 and Lot 2.

Attorney E keeps telling A+ to knock off contacting F about a prescriptive easement.

You are part of A+ wanting to establish that there is a prescriptive easement.

Correct?

You can read the information from the following link and check out the footnotes for cases to research further (enter case names into your search bar):
https://www.leg.state.nv.us/App/NELIS/REL/79th2017/ExhibitDocument/OpenExhibitDocument?exhibitId=30004&fileDownloadName=0405AB380_ande_handout.pdf

You also can do a relatively simple search of applicable cases online (perhaps enter “California prescriptive easement case law” into your search bar), or you can spend time at an area law school’s law library, or perhaps there is a law student who wants to invest some time in research, or buy a few hours of time from a local real estate attorney to research applicable cases for you. Research is time-consuming so you might have a difficult time finding anyone on a forum willing to spend the extensive time necessary for a thorough search.

Good luck.

Edit to add: IF owner installs “no trespassing” signs, A+ should not trespass and should quickly consult with an attorney.

 

[Joe Potter]

Quincy, Wow, thank you for your awesome reply. You got it close, but not quite right. I’ll paste and edit;

One 20 acre unimproved parcel was originally purchased by A, adjacent to Lot 1 and Lot 2 which were owned by B but used by A+. (B purchased lots 1&2 and never returned during following 50 years) B forfeited lot 2 for nonpayment of taxes and A purchased lot 2 from county tax assessor over 20 years ago. A owns lot 2, and A+ uses lot 1 (for 50 years)

B passed away, (and son C) conspires with D & E to sell Lot 1 to F, without mentioning A+ has used lot 1 for 50 years..

A+ is in fact continuing to use Lot 1, and Lot 2 is owned by A.

Attorney E keeps telling A+ to knock off contacting F about a prescriptive easement.

You are part of A+ having clearly already established that there is a prescriptive easement, and notified C, D,& E of such, by certified mail, prior to sale to F.


Edit to add: IF owner installs “no trespassing” signs, A+ should not trespass and should quickly consult with an attorney.

That is not correct. The trespassing issue went away 45 years ago. There is a 5 year statute of limitations on recovering property from prescriptive use by another. A+ would ignore no trespassing signs and continue to use lot 1. As the record holder, F would have to file an action against A+, and win. Simply posting no trespassing signs would only support A+’s argument that there is no permission given by F.

Now for the rest of the reply, yes thank you for the link to the PDF handout on prescriptive easements. I’ve had that on my computer for years, but never noticed the footnote cases are at the bottom of each page, and missed some of them. So I will definitely read and absorb that information. Thank you!!! Just the kind of detail I was hoping to get. J.

 

[quincy]

Quincy, Wow, thank you for your awesome reply. You got it close, but not quite right. I’ll paste and edit;

One 20 acre unimproved parcel was originally purchased by A, adjacent to Lot 1 and Lot 2 which were owned by B but used by A+. (B purchased lots 1&2 and never returned during following 50 years) B forfeited lot 2 for nonpayment of taxes and A purchased lot 2 from county tax assessor over 20 years ago. A owns lot 2, and A+ uses lot 1 (for 50 years)

B passed away, (and son C) conspires with D & E to sell Lot 1 to F, without mentioning A+ has used lot 1 for 50 years..

A+ is in fact continuing to use Lot 1, and Lot 2 is owned by A.

Attorney E keeps telling A+ to knock off contacting F about a prescriptive easement.

You are part of A+ having clearly already established that there is a prescriptive easement, and notified C, D,& E of such, by certified mail, prior to sale to F.


Edit to add: IF owner installs “no trespassing” signs, A+ should not trespass and should quickly consult with an attorney.

That is not correct. The trespassing issue went away 45 years ago. There is a 5 year statute of limitations on recovering property from prescriptive use by another. A+ would ignore no trespassing signs and continue to use lot 1. As the record holder, F would have to file an action against A+, and win. Simply posting no trespassing signs would only support A+’s argument that there is no permission given by F.

Now for the rest of the reply, yes thank you for the link to the PDF handout on prescriptive easements. I’ve had that on my computer for years, but never noticed the footnote cases are at the bottom of each page, and missed some of them. So I will definitely read and absorb that information. Thank you!!! Just the kind of detail I was hoping to get. J.

Thank you for the clarifications, Joe.

As to any “no trespassing” signs you might find posted on the property: My concerns stem not from A+’s prescriptive easement rights but rather from any enforcement actions that might be taken by F (or others) against trespassers. This can be more likely if F has no idea A+ is exercising prescriptive easement rights.

In other words, A+ wants to avoid confrontations (which could become violent) and/or possible arrest.

 

[Joe Potter]

Yes quincy, that is our concern as well. No one on our side wants confrontation, especially a violent one. That is exactly why A+ sent certified letters to those involved in the sale, to try to insure that any buyer would be informed, and therefore either accept the property as is, or use legal means to fight it. In reality, the local County Sheriff is well aware of the situation, and will not be arresting anyone with the last name A+, on lot 1. I want to thank you again for leading me to find those footnote cases that I had missed. Excellent work! J.

 

[quincy]

Yes quincy, that is our concern as well. No one on our side wants confrontation, especially a violent one. That is exactly why A+ sent certified letters to those involved in the sale, to try to insure that any buyer would be informed, and therefore either accept the property as is, or use legal means to fight it. In reality, the local County Sheriff is well aware of the situation, and will not be arresting anyone with the last name A+, on lot 1. I want to thank you again for leading me to find those footnote cases that I had missed. Excellent work! J.

I am glad to hear that the local county sheriff is fully aware of the situation. That must be reassuring to A+.

 

[Joe Potter]

Quincy, we expected (F) to show up immediately after the sale and post signs, and start a fight, so we proactively went to explain the situation with the Sheriff. Now it’s been almost 2 years and no sign of (F). That’s why we are here, we think it’s only a matter of time.

That said, I was hoping to re-direct this thread back to the main topic of interest, being the issues around collateral fraud. We believe that the previous owner (C), the listing realtor (D), and the local attorney (E) conspired to sell the lot 1 for a higher price, by not disclosing important facts that they were aware of. While the fraud was largely targeting the purchaser (F), it also affected us (A+). We think that they shifted the burden of the reduced sale price/value of the lot, because of the prescriptive easement, away from (C), and on to the unknowing victim (F). But isn’t (A+) also a victim of that same fraudulent transaction? (A+) will probably eventually be confronted by (F), possibly in a violent way, or by legal action about something (F) should have been aware of at the time of sale. What we are hoping for is some insight into how to proceed, what options for counterclaims, what legal theories we might explore, to get to collateral damages, and then possible punitive damages. Because we have no “out of pocket” damages, collateral damages are the only other option that we know of. Also, with the local attorney (D) continuing the scheme, by threatening litigation if we contact (F), how would we know for sure if fraud has happened, and how does that affect the statute of limitations.

Any ideas, anyone?

 

[LdiJ]

Quincy, we expected (F) to show up immediately after the sale and post signs, and start a fight, so we proactively went to explain the situation with the Sheriff. Now it’s been almost 2 years and no sign of (F). That’s why we are here, we think it’s only a matter of time.

That said, I was hoping to re-direct this thread back to the main topic of interest, being the issues around collateral fraud. We believe that the previous owner (C), the listing realtor (D), and the local attorney (E) conspired to sell the lot 1 for a higher price, by not disclosing important facts that they were aware of. While the fraud was largely targeting the purchaser (F), it also affected us (A+). We think that they shifted the burden of the reduced sale price/value of the lot, because of the prescriptive easement, away from (C), and on to the unknowing victim (F). But isn’t (A+) also a victim of that same fraudulent transaction? (A+) will probably eventually be confronted by (F), possibly in a violent way, or by legal action about something (F) should have been aware of at the time of sale. What we are hoping for is some insight into how to proceed, what options for counterclaims, what legal theories we might explore, to get to collateral damages, and then possible punitive damages. Because we have no “out of pocket” damages, collateral damages are the only other option that we know of. Also, with the local attorney (D) continuing the scheme, by threatening litigation if we contact (F), how would we know for sure if fraud has happened, and how does that affect the statute of limitations.

Any ideas, anyone?

A is claiming a prescriptive easement but that hasn't been established in a court of law. I don't know if it would even be possible to try to claim it in a court of law unless someone was stopping A from using Lot 1. Therefore A does not have any damages of ANY kind at this point because no one is attempting to stop A from using Lot 1, unless A wants to try to make the argument that the letters telling him to stop using the Lot are a sufficient attempt to stop him. A should consult a local attorney about that.

Therefore it is also questionable whether or not C, D or E participated in any fraud, since A does not have an easement established in a court of law. The most (that I can see) that C, D or E would be required to disclose is that a neighbor has been using the property even though he was told not to do so, and might at some point, try to officially claim a prescriptive easement.

You seem to be making the argument that A HAS a prescriptive easement rather than the argument that A has a potential claim to a prescriptive easement. That is an argument that you make in court, in order to officially establish the easement, rather than just saying that it exists and gives you rights.

I suspect that you haven't heard from F because F bought the property as an investment. Depending on how long F intends to hold the property he may never attempt to confront you. After all, A basically uses the property for recreation, and some day that probably will stop. If F is in it in the long haul, all F has to do is wait A out.

I don't understand why A didn't just buy the property when C wanted to sell it. That would have been the sensible thing to do.

 

[Joe Potter]

LdiJ, Thank you for your excellent reply. I hope it is ok if I do as before, and paste and comment on what you’ve said.

A is claiming a prescriptive easement but that hasn't been established in a court of law. I don't know if it would even be possible to try to claim it in a court of law unless someone was stopping A from using Lot 1. Therefore A does not have any damages of ANY kind at this point because no one is attempting to stop A from using Lot 1, unless A wants to try to make the argument that the letters telling him to stop using the Lot are a sufficient attempt to stop him. A should consult a local attorney about that.
A believes that the prescriptive easement was acquired, and ripened, the moment that the elements were established, 45 years ago. A could file for declaratory relief, without F stopping the use. You are correct that A does not have any damages yet. A is here to prepare for the eventuality of civil action. The only local attorney is the one involved in the fraudulent behavior.

Therefore it is also questionable whether or not C, D or E participated in any fraud, since A does not have an easement established in a court of law. The most (that I can see) that C, D or E would be required to disclose is that a neighbor has been using the property even though he was told not to do so, and might at some point, try to officially claim a prescriptive easement.
A contends that “failure to disclose material facts that affect the price, desirability, or marketability of real property during a sale in California, is called FRAUD”. Since they were sent certified letters claiming extensive prescriptive rights, that had ripened long ago, they would need to disclose those facts. We’re not sure what they disclosed.

You seem to be making the argument that A HAS a prescriptive easement rather than the argument that A has a potential claim to a prescriptive easement. That is an argument that you make in court, in order to officially establish the easement, rather than just saying that it exists and gives you rights.
Yes, A claims that a prescriptive easement has ripened, and already “exists”, although not perfected in Court, it still has the full effect. For instance there can be no criminal trespass charged against someone that claims a prescriptive easement, even if it is unrecorded. Because it has already ripened, it is now a civil matter, and is upon the fee title owner to pursue a civil action to recover the property. (Cal Civ. Code 1007) in part; “Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all”. A concedes that this issue could be debatable.

A agrees totally with the last part of your post, and shares your suspicion that F’s purchase was likely for investment. Why else would someone purchasing land in a very remote area, tell their only neighbors within a mile that they “never want to hear from them again”. As mentioned, F may never show up, or may show up tomorrow, A just wants to be prepared. A’s use of the lot is extensive now. A+ uses roads, cuts trees for firewood to heat their homes, coppices, and grazes the lot, target practices, hunts, hikes, rides dirt bikes, and quads, searches for antler drops, dumps animal carcasses, and guts, camps and allows others to camp and participate there as well. A+ has 5 generations that used the lot extensively, while B never visited the lot even once before dying of old age, after 50 years of ownership. So, it seems to be the opposite, that A+ only needs to wait out F. Your last comment is right on, because the first thing A did, was to make an offer on the lot, at full current market value. C declined stating that “A was just trying to get a better price by claiming a prescriptive easement”, and sold it, out of state, for about 3X the value.

Thank you so much for your input, and for steering us back toward our goal of exploring the possible paths forward. We think you are right about there being no damages yet, and are really just trying to prepare for any possibility. J.

 

[LdiJ]

LdiJ, Thank you for your excellent reply. I hope it is ok if I do as before, and paste and comment on what you’ve said.

A is claiming a prescriptive easement but that hasn't been established in a court of law. I don't know if it would even be possible to try to claim it in a court of law unless someone was stopping A from using Lot 1. Therefore A does not have any damages of ANY kind at this point because no one is attempting to stop A from using Lot 1, unless A wants to try to make the argument that the letters telling him to stop using the Lot are a sufficient attempt to stop him. A should consult a local attorney about that.
A believes that the prescriptive easement was acquired, and ripened, the moment that the elements were established, 45 years ago. A could file for declaratory relief, without F stopping the use. You are correct that A does not have any damages yet. A is here to prepare for the eventuality of civil action. The only local attorney is the one involved in the fraudulent behavior.

Therefore it is also questionable whether or not C, D or E participated in any fraud, since A does not have an easement established in a court of law. The most (that I can see) that C, D or E would be required to disclose is that a neighbor has been using the property even though he was told not to do so, and might at some point, try to officially claim a prescriptive easement.
A contends that “failure to disclose material facts that affect the price, desirability, or marketability of real property during a sale in California, is called FRAUD”. Since they were sent certified letters claiming extensive prescriptive rights, that had ripened long ago, they would need to disclose those facts. We’re not sure what they disclosed.

You seem to be making the argument that A HAS a prescriptive easement rather than the argument that A has a potential claim to a prescriptive easement. That is an argument that you make in court, in order to officially establish the easement, rather than just saying that it exists and gives you rights.
Yes, A claims that a prescriptive easement has ripened, and already “exists”, although not perfected in Court, it still has the full effect. For instance there can be no criminal trespass charged against someone that claims a prescriptive easement, even if it is unrecorded. Because it has already ripened, it is now a civil matter, and is upon the fee title owner to pursue a civil action to recover the property. (Cal Civ. Code 1007) in part; “Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all”. A concedes that this issue could be debatable.

A agrees totally with the last part of your post, and shares your suspicion that F’s purchase was likely for investment. Why else would someone purchasing land in a very remote area, tell their only neighbors within a mile that they “never want to hear from them again”. As mentioned, F may never show up, or may show up tomorrow, A just wants to be prepared. A’s use of the lot is extensive now. A+ uses roads, cuts trees for firewood to heat their homes, coppices, and grazes the lot, target practices, hunts, hikes, rides dirt bikes, and quads, searches for antler drops, dumps animal carcasses, and guts, camps and allows others to camp and participate there as well. A+ has 5 generations that used the lot extensively, while B never visited the lot even once before dying of old age, after 50 years of ownership. So, it seems to be the opposite, that A+ only needs to wait out F. Your last comment is right on, because the first thing A did, was to make an offer on the lot, at full current market value. C declined stating that “A was just trying to get a better price by claiming a prescriptive easement”, and sold it, out of state, for about 3X the value.

Thank you so much for your input, and for steering us back toward our goal of exploring the possible paths forward. We think you are right about there being no damages yet, and are really just trying to prepare for any possibility. J.

I have some concerns about some of the stuff that A does on the property, particularly the cutting of firewood. An easement does not give someone ownership rights. It merely gives someone the right to use the property for a specific use. The most common uses are ingress/egress and recreation. Cutting down trees for their wood is highly questionable in my opinion and shouldn't be done.

I also believe that A needs a consult with a local attorney. He is treating that land as if it is his own, and is looking at the issue of the "ripened easement" as if it somehow gives him the same rights as an owner. I think that he is badly mistaken.

 

[Zigner]

... the first thing A did, was to make an offer on the lot, at full current market value. C declined stating that “A was just trying to get a better price by claiming a prescriptive easement”, and sold it, out of state, for about 3X the value.

In other words, A's offer was about 1/3 market value. Yeah, I can understand why they didn't sell to A.