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William B. Esq.
William B. Esq., Attorney
Category: Business Law
Satisfied Customers: 3268
Experience:  I am a civil litigation attorney with experience representing and advising HOAs, businesses, and individuals.
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We recently purchased a home in Orinda. The title report shows

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We recently purchased a home in Orinda. The title report shows a path adjacent to the property giving access to the street below (it is a hill lot, so the distance saved is about .5 mile on a narrow street). The City confirmed the path on their records; the neighbor between our house and the street below blocked the path some years ago and will not give access. The City wants to stay out of the dispute, even though the director of planning stated that no one has the right to block a path. The path is not dedicated, nor have it been abandoned (and there are no taxes so no possibility of prescriptive easement). The City responded in July stating that it would do nothing.
Initially I have three relaed questions: Please confirm that I would seek declaratory relief from the court. Would I sue both the City and the neighbor (and if not, which should i sue). lastly, is there a statute of limitation (we purchased last year).

thanks
Submitted: 1 year ago.
Category: Business Law
Expert:  William B. Esq. replied 1 year ago.

William B. Esq. :

Thank you for using our service, and thank you for requesting me. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

To resolve this type of dispute, you would be filing a suit to "quiet title" it is a separate and distinct part of the Code of Civil Procedure dedicated specifically to clearing issues related to real property title. You are required to name as defendants in your suit any party that claims, or may claim an interest in the property that is adverse to the one you are claiming (a walkway or pathway easement, or a pathway that actually belongs to the property - my apologies I am not entirely clear on the description of the property, but for our purposes, the distinction is unimportant).

William B. Esq. :

The biggest issue you are facing is one of "adverse possession" a claim that your neighbor may raise where they have blocked the path for an extended period of time, and therefore they are entitled to exclusive possession of the property, and your easement, or property interest is extinguished (regardless as to what your deed says). You can find a helpful article describing this doctrine here: http://www.dot.ca.gov/hq/row/landsurveys/Study_material/California-Adverse-Possession.pdf

William B. Esq. :

In California, the use must be for at least 5 years, and must be exclusive during that time. This time period begins to run at the time when the other property owner first took action to use the property exclusively and blocked you or your predecessors from using the pathway.

William B. Esq. :

With the above being said, these cases are always fact specific, Courts are prone to rule against adverse possession claims that unfairly take away from another party's rights, and the elements of an adverse possession action must be met exactly in order to establish title in that manner.

William B. Esq. :

If you purchased title insurance at the time that you purchased your home, you can tender the claim to your title insurance carrier, they should defend the matter on your behalf. (Just write a letter to them asking them to take care of the issue, you can send it to the insurance company directly or to the broker that sold you the policy).

William B. Esq. :

I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.


Thank you for using our service, please do not forget to rate my answer when you are satisfied. I am going to transfer our conversation to the "Q&A" format to ensure you can review the entire response and that I can follow up to any questions you may have quickly. I do wish you the best of luck in this matter.

William B. Esq., Attorney
Category: Business Law
Satisfied Customers: 3268
Experience: I am a civil litigation attorney with experience representing and advising HOAs, businesses, and individuals.
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Expert:  William B. Esq. replied 1 year ago.
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Customer: replied 1 year ago.

Bill,


I did not clearly state that the path is 'not deeded.' It is my understanding that this makes it public, and that public land cannot be acquired by adverse possession.


 


Similarly, the title company told me that they did not insure the path, or my right to use the path.


 


does this information change your advice (i.e., neighbor's defense or use of a quiet title action). Also, are there any statute of limitation issues.


 


thanks

Expert:  William B. Esq. replied 1 year ago.
If the path is public, it cannot be acquired by adverse possession (you are correct), and there is no statute of limitations concern.

You can probably safely sue for declaratory relief alone, but I would recommend including a cause of action for quiet title (it is by far the best way to ensure you are clearing the issue, and you are claiming an adverse interest in title to property that is now claimed by this neighbor).

I would sue the city for failure to maintain the pathway (declaratory relief), in the same suit.

Thank you for the clarification.

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