Posted on 08/07/2017 2:06:52 PM PDT by BackRoads775
First thing on my agenda would be to move into the security shack.
OMG! I’ve got to ask them if I can detect those islands!!!
DONATE IT TO THE NRA!!!
That would cause an aneurysm storm there!
California statutes do not require 5 years, and the late honorable David Dolgin settled for 3 years in 1994.
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You’re on the right track, and two major RE counselors live on the street.
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I hope they post lots of videos of the Rat elitists whining.
In any event, the 5 year statutory period here did not commence, at best, until just 2 years ago – there could not have been any adverse possession or use, of course, while the prior owner’s were in title. Our new buyers no doubt realize how important it is to take action in that regard during the next 3 years.
Your #58 sets out the Group of 35’s argument. It should be enough to induce the new owner’s to quickly accept a reasonable return on their investment and move on.
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Prescriptive rights have absolutely nothing to do with “adverse possession.”
They are simply the right to continue any productive use that has continued for a year or more, or were provably prevented for a year or more.
It need not have any adverse nature, and can be mutual.
They can only be prevented from ripening by a prior consensual agreement. That usually cannot be applied to the sole and necessary access to a parcel.
California specifically prohibits and nullifies any action that would “land lock” any parcel.
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That statement defies logic. CA's judiciary and statutes treat both with substantially the same requirements, with minor procedural variations. They are different, of course, but only in the sense that the former may provide the right to use another’s property for a particular purpose and the latter may provide a fee title to another’s property.
I added AP to my response to view the matter in a light most favorable to The 35.
You were the first on this thread to refer to prescriptive rights and my view is that the right is not applicable. It appears this buyer simply bought the real estate interests of the HOA (the common areas), which the previous owners no longer control.
I disagree with much of the remainder of your response, but that is what lawsuits are about.
This, however, is interesting:
California specifically prohibits and nullifies any action that would “land lock” any parcel.
It has been decades since I was involved with CA real estate development and while your statement is essentially true, I seriously doubt that principle is applicable here as well.
The 35 did not create a new parcel, but rather by their actions sold (albeit involuntary) a contiguous parcel in which they held an interest. Almost certainly, the new owner will be sure to avoid any “landlocked” element by granting access for a reasonable consideration to offset the costs of management, maintenance, security, insurance, taxes, etc. Such rights, obligations and liabilities would certainly have been a bargained-for element with any other form of conveyance.
(Would enjoy reading the written opinions of the real estate attorneys who consulted the buyer in this matter.)
It has been interesting, you can have the last word.
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As I stated they are completely different in their nature, and usually also in their acquisition.
Most prescriptive rights are in no way contested, and are a simple fact of reality.
Much of the time, fee owners are not even conscious of their existence until a boundary survey is needed for some kind of project.
Only the very least experienced owners are even bothered about them.
Your understanding of easements is weak. In all subdivisions in western states the fee underlying the road is held by the fronting properties.
That means that the prescriptive right to use exists over each other owners frontages. Even if the authority that signed for the filing of the map dropped the ball completely, the roads still exist prescriptively from the first day they are in use. The matter is not subject to the laws of the states; it is a feature of Guadalupe Hidalgo. It protected the ranchers initially.
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With that, you misused your "last word".
Once more, IMO the outcome of this dispute whether it is negotiated or lititgated, will not rely on any theory of prescriptve rights or whether a parcel is land-locked. Those concepts are not relevant.
There is no doubt the 35 have a right to use the road for ingress and egress and I have not argued otherwise. One would expect that right was formally conveyed as required by the city when the common area parcel was created.
The 35's prompt lawsuit addresses the immediate question of whether the separate common areas were properly transferred in accordance with tax sale procedures.
If so, the next question is whether the new owner is obligated as a condition of title to maintain the common areas in a specific manner. If not, the new owner may have the right to effect any changes deemed appropriate including, for instance, removal of the security guard gate.
Such a right, of course, certainly has an enormous economic value that will be included in any negotiated settlement.
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>> “One would expect that right was formally conveyed as required by the city when the common area parcel was created.” <<
I was pointing out that even if they had dropped the ball on that, the owners of the homes/tenants are still in good shape. California’s clumsy, incompetent legislature still managed to plug that hole decades ago.
BTW, there is no such thing as a “last word” on FR!
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