Novel Legal issue?

[Joe Potter]

Thanks LdiJ, and Zigner, We understand your concerns because those kinds of extensive rights are not common, but they are legal.

A Portion of California Civil Code 801

This is what is listed in CA Civil Code 801. This is not a list of types of easements, but things that may become easements. "The following land burdens, or servitudes upon land, may be attached to property as incidents or appurtenances, and are then called easements whether by grant or prescription":

The right of pasture

The right of fishing or hunting

The right of taking game

The right-of-way

The right of taking water, wood, minerals, and other things

The right of transacting business upon land

The right of conducting lawful sports upon land

The right of receiving air, light, or heat from or over, or discharging the same upon or over land

The right of receiving water from or discharging the same upon land

The right of flooding land

The right of having water flow without diminution or disturbance of any kind

The right of using a wall as a party wall

The right of receiving more than natural support from adjacent land or things affixed thereto

The right of having the whole of a division fence maintained by a coterminous owner

The right of having public conveyances stopped, or of stopping the same on land

The right of a seat in church

The right of burial

The right of receiving sunlight upon or over land as specified in Section 801.5


(A) totally understands the difference between prescriptive rights to do certain things on the land, and having the same rights as the fee simple owner. (A) doesn't make any claim that stops the owner from using the land. that would be adverse possession, which requires the payment of property taxes. B always paid the taxes so that is not possible in this case. Also, it is not true that (A) offered 1/3 of the market price. (A) offered the going price per acre in the area at the time. no one has ever paid the amount F paid for a lot here.

Based on the above list, do you think that (A)'s prescriptive easements reduce the value of lot 1? if so how much?

 

[LdiJ]

Just because something can be attached to property by agreement doesn't mean that everything that can be attached to property can be attached involuntarily through a prescriptive easement. Yes, I agree that every one of those items listed can be an easement attached to a property. However, you will find that the vast majority of easements are those that have been agreed to by the parties and some sort of compensation has been made for the easement.

You are not talking about that kind of easement. You are talking about an involuntary easement/prescriptive easement that A has obtained by simply taking what he wants. Those kinds of easements are very different.

A needs a consult with a local real estate attorney.

 

[Joe Potter]

LdiJ, Thank you for this reply. If I may, I’ll paste and comment.

Just because something can be attached to property by agreement doesn't mean that everything that can be attached to property can be attached involuntarily through a prescriptive easement.

That’s not what Cal civil code 801 says. It says; land burdens, or servitudes upon land, may be attached, and then includes a list. Is your statement based on law?, and if so, please cite the code that requires ”agreement”.

Yes, I agree that every one of those items listed can be an easement attached to a property. However, you will find that the vast majority of easements are those that have been agreed to by the parties and some sort of compensation has been made for the easement.

Just because the vast majority are by agreement, doesn’t mean that they cannot be by prescription. In fact the law says that they can. There are hundreds, if not thousands of cases across our country, where easements were obtained by prescription.

You are not talking about that kind of easement. You are talking about an involuntary easement/prescriptive easement that A has obtained by simply taking what he wants. Those kinds of easements are very different.

Please explain to me how they are different. I am really trying to understand what you are saying. Is there a code, or even case law that I am not aware of, that specifies that easements may only be granted, and cannot be obtained by prescription? or that the method of obtaining an easement makes that easement "different"? I just wonder if your statement is based on law, or perhaps your feelings of right and wrong. If that’s it, then I understand. And it might seem unfair. But California real estate law is based on old English common law. Land ownership is not absolute, or infinite. There is an adage that says; “Land owners who sleep on their property rights, are subject to losing them”. (B) didn’t just sleep on their property rights, they fell asleep and never woke up, and died of old age 50 years later.

A needs a consult with a local real estate attorney.

Again, the only lawyer within 100 miles is (E),the one that is involved in this sh*tshow.

I’m sorry, I don’t mean to be rude. I’m just looking for meaningful advice on the issues that I might use in court, and trying to stay away from moral judgments on what has happened in the past. J.

 

[quincy]

You are correct that Lot 1’s owner (C) should have informed the realtor (D) and the lawyer (E) of the assertions by A+ that they have a prescriptive easement. C,D,E should have, in turn, informed buyer (F) of A+ claims - especially since the use of Lot 1 by A+ is extensive and since prescriptive easements do not have to be recorded to be valid (so wouldn’t necessarily show up on a title search).

That said, you (A+) will just have to battle with the buyer (F) should buyer (F) try to prohibit any use of the property by A+, until a court officially grants the prescriptive easement - with the court action being initiated by F or by A+.

Any legal action taken against C, D, or E should be initiated by F, the injured party.

It would be smart for A+ to talk to a California real estate attorney who is well-versed in easement rights, either now in preparation for a possible future lawsuit or later, if the problems A+ is expecting actually arise.

 

[Joe Potter]

quincy, yes you are absolutely 100% right on with your assessment here. you nailed it. So that's why we we're here looking for input. Just trying to prepare for a possible future lawsuit. I think you're also correct about F needing to be the one to initiate an action against C,D, and E. We were trying to explore the possibility of a cross-complaint against C,D, and E as part of an affirmative defense in an answer. Thank you so much for this. Excellent!!! J.

 

[Joe Potter]

LdiJ, I wanted to sincerely thank you for your last few posts and replies. I showed them to a couple of family members, and they pointed out that, whether intended or not, you provided a platform for us to defend our past actions, not just legally, but on moral grounds. Your reaction to our situation might mirror a jury, or even a judge, and we hadn’t prepared for that kind of argument. Although it wasn’t what we thought we wanted, it provided an insight into what we might expect to find, if and when we get to court. So thank you. We appreciate your comments.

 

[Bali Hai Again]

What a Royal mess the King and his Nobles created and exported to the New World! The American dream is to buy a home (and land). Now along with the high interest mortgage and prices you need to worry about having your dream stolen because of some archaic land laws that don’t apply anymore! The Native Americans didn’t sleep on their land rights and it was stolen from them anyway! Or didn’t they have rights?

 

[LdiJ]

LdiJ, I wanted to sincerely thank you for your last few posts and replies. I showed them to a couple of family members, and they pointed out that, whether intended or not, you provided a platform for us to defend our past actions, not just legally, but on moral grounds. Your reaction to our situation might mirror a jury, or even a judge, and we hadn’t prepared for that kind of argument. Although it wasn’t what we thought we wanted, it provided an insight into what we might expect to find, if and when we get to court. So thank you. We appreciate your comments.

I encourage A again to consult an attorney, even if they have to consult one more than 100 miles away. I also encourage you to read as many cases as possible and take particular note of what prescriptive rights the parties are asking for that are granted/ratified by a court. If you can find cases where the courts have agreed that someone has prescriptive rights to use an entire property how they please, when they please, including altering the property (cutting down trees) etc. as they please, with no regards for the rights or usage by the actual owner of the property, then more power to you. I personally have never seen something like that granted over the objections of the owner of a property, but if you can find cases that may help you.

However, an attorney who is located in the state where the property is located is in a much better position to advise you as to what is or is not realistically possible.

 

[quincy]

... The American dream is to buy a home (and land). Now along with the high interest mortgage and prices you need to worry about having your dream stolen because of some archaic land laws that don’t apply anymore! ...

Bali Hai, one could argue, I suppose, that property that is left unused by a property owner over a long period of time has less value than property used continuously for its intended purpose. For example, how many buildings left empty and neglected by their owners could be repurposed for use as homeless shelters? If a property owner wants the property, shouldn’t s/he exercise rights in the property so it doesn’t become a blight on a community? Another example: If vacant property is left untended for long periods of time and its animal population allowed to grow unchecked, animal starvation and diseases can result.



Joe, you might have run across these cases in your research?

Mehdizadeh v Mincer: https://caselaw.findlaw.com/court/ca-court-of-appeal/1846887.html

Mesnick v Caton:
https://caselaw.findlaw.com/court/ca-court-of-appeal/1844826.html

“An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property which right must be less than the right of ownership.” (from Mesnick, bolding added)

Although recreational uses of another’s property (hunting, etc) might not infringe on the ownership rights of F, I think your use of the property’s trees stretches any prescriptive easement rights that could or would be granted (unless the “firewood” you spoke of earlier was dead wood found scattered on the land). You probably should prepare for any court challenge to result in your current prescriptive easement uses restricted.

 

[LdiJ]

Bali Hai, one could argue, I suppose, that property that is left unused by a property owner over a long period of time has less value than property used continuously for its intended purpose. For example, how many buildings left empty and neglected by their owners could be repurposed for use as homeless shelters? If a property owner wants the property, shouldn’t s/he exercise rights in the property so it doesn’t become a blight on a community? Another example: If vacant property is left untended for long periods of time and its animal population allowed to grow unchecked, animal starvation and diseases can result.



Joe, you might have run across these cases in your research?

Mehdizadeh v Mincer: https://caselaw.findlaw.com/court/ca-court-of-appeal/1846887.html

Mesnick v Caton:
https://caselaw.findlaw.com/court/ca-court-of-appeal/1844826.html

“An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property which right must be less than the right of ownership.” (from Mesnick, bolding added)

Although recreational uses of another’s property (hunting, etc) might not infringe on the ownership rights of F, I think your use of the property’s trees stretches any prescriptive easement rights that could or would be granted (unless the “firewood” you spoke of earlier was dead wood found scattered on the land). You probably should prepare for any court challenge to result in your current prescriptive easement uses restricted.

The firewood portion of things was my biggest concern as well. The way things were worded it did sound like they were cutting down trees rather than just gathering deadwood.

 

[Bali Hai Again]

If you are interested in someone else’s property, contact them and offer to buy it and not try to legally steal it using archaic laws that should be abolished. If you want to build a homeless shelter pay the owner. Starving animals are just another invalid excuse to use private land that isn’t yours. If you don’t like the way the property looks, don’t look at it.

 

[quincy]

If you are interested in someone else’s property, contact them and offer to buy it and not try to legally steal it using archaic laws that should be abolished. If you want to build a homeless shelter pay the owner. Starving animals are just another invalid excuse to use private land that isn’t yours. If you don’t like the way the property looks, don’t look at it.

It can be difficult to locate and contact some property owners. I know Detroit has several property investors who have never visited the properties they purchase, leaving the houses to decay and the vacant lots to become junk yards.

I would rather see the unoccupied houses occupied by someone who needs housing and I would rather see the vacant land improved so others can make positive use of it (e.g., a community garden, a playground).

If A+‘s prescriptive easement is challenged, I suspect a court would severely restrict their current uses of the property. But easements can be tricky and the grants of rights surprising, so who knows what (if anything) will happen.

 

[Joe Potter]

Thanks for the posts, everyone. This isn’t at all where we wanted to go with our question, but we’d like to address the tree issue first. LdiJ has proposed that easements which are granted by the owner, are completely different than those that are acquired by prescription. There is no basis in law to support that, so we’ll leave it there.
Some of you may or may not have heard of property, that is, land being sold without certain rights. Have you heard of land being sold, but the mineral rights being reserved by the seller? What about water rights being reserved, and not passing with the land? Another very common resource that is separated at sale is “timber rights”. I have a friend that bought 10 acres high up in the mountains so he could build a cabin, raise chickens, and grow a garden ( live the mountain man life) when He bought the land it was stupid cheap. I think it was literally $100 per acre, so he paid a thousand dollars for his “homestead”. The realtor told him that the land didn’t come with timber rights, so he couldn’t cut any trees, and he agreed. He built his cabin, and a few years later Sierra Pacific lumber company called and said that their felling crew would be in to clear the land, which they did. He owned the land but not the trees growing on it. Now I can already hear you guys saying yes but that’s different. No it isn’t. Resources above and below the surface of land can be granted away, sold, reserved from a sale, or lost through prescription, period. Do you have any idea how many people in Texas have oil pumps in their yards, because they bought cheap land without the oil rights?

The second thing we wanted to address, was the difference between prescriptive easements and adverse possession. We’ll cut and paste LdiJ’s post about our activities;

that someone has prescriptive rights to use an entire property how they please, when they please, including altering the property (cutting down trees) etc. as they please, with no regards for the rights or usage by the actual owner of the property,

ok, now that’s not what we are doing, or have ever done. We have never stopped the owner from using their property for any purpose, nor have we fenced or restricted their access, or prevented them from enjoying any aspect of their land. Prescriptive easement holders are not allowed to do so. However, fee simple landowners are also restricted from interfering with the uses by the easement holder. So they can’t keep us from driving across the land, grazing livestock, or any of the other activities.

Prescriptive easements and adverse possession are closely related legal issues of the same doctrine, but completely different. The difference is ownership. If our use of the lot 1 was so extreme that it prevented the owner from accessing it, or using it, we would not prevail with a prescriptive rights claim. That would be called adverse possession, and in order to prevail on that, we would have to have paid the property taxes, timely, for at least 5 years, which we haven’t. We do not wish to own the land, we only wish to continue to use it as we have for almost a half century. (F) can build a home, and do anything they want on their land, it just comes with some restrictions (easements) that have to be respected. It will be very interesting to find out if (F) purchased lot 1, knowing all about the easements. Because if they did, there can be little room for complaint.

We eventually would love to get back to our main question. We’ll restate it next time. J.

 

[quincy]

Thanks for the posts, everyone. This isn’t at all where we wanted to go with our question, but we’d like to address the tree issue first. LdiJ has proposed that easements which are granted by the owner, are completely different than those that are acquired by prescription. There is no basis in law to support that, so we’ll leave it there.
Some of you may or may not have heard of property, that is, land being sold without certain rights. Have you heard of land being sold, but the mineral rights being reserved by the seller? What about water rights being reserved, and not passing with the land? Another very common resource that is separated at sale is “timber rights”. I have a friend that bought 10 acres high up in the mountains so he could build a cabin, raise chickens, and grow a garden ( live the mountain man life) when He bought the land it was stupid cheap. I think it was literally $100 per acre, so he paid a thousand dollars for his “homestead”. The realtor told him that the land didn’t come with timber rights, so he couldn’t cut any trees, and he agreed. He built his cabin, and a few years later Sierra Pacific lumber company called and said that their felling crew would be in to clear the land, which they did. He owned the land but not the trees growing on it. Now I can already hear you guys saying yes but that’s different. No it isn’t. Resources above and below the surface of land can be granted away, sold, reserved from a sale, or lost through prescription, period. Do you have any idea how many people in Texas have oil pumps in their yards, because they bought cheap land without the oil rights?

The second thing we wanted to address, was the difference between prescriptive easements and adverse possession. We’ll cut and paste LdiJ’s post about our activities;

that someone has prescriptive rights to use an entire property how they please, when they please, including altering the property (cutting down trees) etc. as they please, with no regards for the rights or usage by the actual owner of the property,

ok, now that’s not what we are doing, or have ever done. We have never stopped the owner from using their property for any purpose, nor have we fenced or restricted their access, or prevented them from enjoying any aspect of their land. Prescriptive easement holders are not allowed to do so. However, fee simple landowners are also restricted from interfering with the uses by the easement holder. So they can’t keep us from driving across the land, grazing livestock, or any of the other activities.

Prescriptive easements and adverse possession are closely related legal issues of the same doctrine, but completely different. The difference is ownership. If our use of the lot 1 was so extreme that it prevented the owner from accessing it, or using it, we would not prevail with a prescriptive rights claim. That would be called adverse possession, and in order to prevail on that, we would have to have paid the property taxes, timely, for at least 5 years, which we haven’t. We do not wish to own the land, we only wish to continue to use it as we have for almost a half century. (F) can build a home, and do anything they want on their land, it just comes with some restrictions (easements) that have to be respected. It will be very interesting to find out if (F) purchased lot 1, knowing all about the easements. Because if they did, there can be little room for complaint.

We eventually would love to get back to our main question. We’ll restate it next time. J.

Your first question was about C,D and E not telling F about the prescriptive easement. That was answered. This failure to disclose a material fact about the property is not really a concern of yours, even though you offered to purchase the property that F eventually purchased. If F has a problem with the failure by C,D or E to disclose the prescriptive easement, F can choose to pursue a legal action against C, D or E.

The rest of your questions seem to have been addressed pretty thoroughly already - or as thoroughly as can be expected in a forum setting. You (A+) will have to set aside some time to do the research on prescriptive easements in California. Hiring an attorney in your area to do the research for you could relieve you of this task and you might find it worth the expense.

 

[Taxing Matters]

If you are interested in someone else’s property, contact them and offer to buy it and not try to legally steal it using archaic laws that should be abolished. If you want to build a homeless shelter pay the owner. Starving animals are just another invalid excuse to use private land that isn’t yours. If you don’t like the way the property looks, don’t look at it.

The principles of adverse possession and prescriptive easements our not outdated. They serve the same purpose as they have for centuries: to ensure that land is being put to some kind of productive use. Every absentee owner should know about the law on adverse poessession and prescriptive easements to avoid losing rights in their property. And it is not hard or expensive for a property owner to do it. If a property owner cares so little for his/her property that he/she won't even do the very little that is required to avoid someone from establishing a good adverse possession claim then I don't feel all that sorry for the owner. If you own property, it is up to you to protect your interest in it. If you aren't willing to do that, you must not really care what happens to it. So, let's let the person who does care and has been using become the owner instead. So long as the law requires a sufficiently long time for the right established (e.g. 10, 15, 20 years) the owner has had plenty of opportunity to swing by the property, see that someone is using it, and to take the action necessary to eject them. I'm a strong proponent of property rights, but the he owner the owner that can't be bothered check his/her property at least every couple of years is someone who just doesn't really care what happens to it. When the power is the hands of the owner to prevent adverse and prescriptive easement claims from succeeding, then like in many other instances in the law, if you don't actively assert your rights, you can lose them. It's all within the owner's power to prevent it from happening in the first place. It's the owner's fault if he or she doesn't do the minimum needed to assert his/her rights.