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socrateaser, Lawyer
Category: Legal
Satisfied Customers: 37814
Experience:  Retired (mostly)
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I have an opportunity for a "lease option to purchase" my house,

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I have an opportunity for a "lease option to purchase" my house, in California. My landlords are giving me a great deal, but it may be a non conforming lot. The lot size is 25' x 75' (it's the beach, so small lots are somewhat normal here. They did not have it surveyed when they bought it, (1998?) and now my neighbors are rebuilding their house, so the survey markers are coming into 'my' property. If this is the case, my other neighbors have built onto 'my' land....What happens now?

I'm not sure what the lease-option has to do with the encroachment issue. Can you tell me what your concern is here. I want to make sure I'm addressing the issue properly.

Thanks in advance.
Customer: replied 3 years ago.

I guess it's the encroachment issue. I don't want to buy something that I can't sell at a later date. It's a cute house, good for me, but a lot of people will spend a lot of money to buy here.I'm planning on staying here for a long time, but when I do sell, whoever buys it will want to tear it down, and go bigger, and higher.

If the neighbor's encroachment has existed for more than 5 years, then it's likely you will not be able to force them off the land. Hostile, open, actual, exclusive and continuous use of the property of another, without consent, creates ownership in the encroaching property owner. Code Civil Procedure § 318.

I'm guessing that 5 years has passed, which means you can't force the neighbor off your property, or obtain damages for the encroachment. BotXXXXX XXXXXne, you get the property between the survey marks that are not encroached upon, and so will any successor to you who purchase the property.


But, if the encroachment is less than 5 years old, then you can sue the neighbor to quiet title and the court will either give you damages for the lost property value, or order the neighbor's property demolished (however, this is an extremely rare outcome).

Hope this helps.

Customer: replied 3 years ago.

Yes, it been more than 5 years since the neighbors house was built. Is there such a thing as a 'grandfather' clause in this instance. My town is notorious for having houses built in the wrong places...

The way that the law works is that if the encroachment has been in place for 5 or more years, then at a minimum, the neighbor would have to voluntarily remove the encroachment for at least 5 years, before ownership would return to you. This right is legally termed a "prescriptive easement."

However, if the neighbor can prove that he/she paid property taxes on the encroachment (a complicated legal issue), then the neighbor becomes the legal owner of the property, and is entitled to a declaration from the court to that effect. This is called the law of "adverse possession."

The term "grandfather clause" has no application to your description of facts and circumstances.

Hope this helps.
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