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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2936
Experience:  Civil litigation attorney for individuals and businesses.
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I need help with several related issues regarding my property.

Resolved Question:

I need help with several related issues regarding my property.

First, a current survey done for the purpose of pulling permits on existing construction seems to show that my garage is 8 inches over my rear lot line. The city is hinting that I should make my 80 year old garage conform to the current requirements of being 5 feet from the lot line. Don't i own this land now based on longevity of use. This property is in California.
Second, neither the city offices nor I have been able to find the original permits or certificate of occupancy for my house. According to several people I have spoken to, this is probably due to a county records fire that occurred sometime around the 1940's, which destroyed a large number of building records. How can I present a legal argument that my house must have been permitted are are currently either conforming and legal or at least non-conforming and legal. I.E. grandfathered.
Submitted: 10 months ago.
Category: Legal
Expert:  William B. Esq. replied 10 months ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. My name is XXXXX XXXXX X would like to assist you today.

William B. Esq. :

With regards XXXXX XXXXX garage, I do not know who owns the property that your garage currently encroaches on (if it is public, you cannot own it by adverse possession), but you do not own the property by adverse possession unless and until you establish your claim through an adverse title action (a civil court case in which you have to show your use of the property is superior to that of the title owner. Given the length of use, you would have a claim based on that, but there may be defenses depending on the type of title belonging to the neighboring property). As far as set-backs go (the 5 ft.) if you are doing a certain amount of construction on your property, the city can require you to reconfigure outbuildings to match current set back requirements due to fire protection conditions, etc., but this is something that can be negotiated in many cases for variances (or "grandfathered" depending on the language in the code).

William B. Esq. :

Usually a building that has been standing as long as yours does not require the original plans or a certificate of occupancy. Unless they are asking for this information for a specific purpose, I do not know that this would be an issue (I have not run across this problem with construction of this age). As far as the construction in question being "grandfathered in". Usually it is not an "all or nothing" issue. Grandfathering is a code specific issue where certain things must be updated (one good example is electricity in a building, most homes that have significant remodeling - say 50% - must have electric updated to meet standards, this is an example only, I do not know what it is for your city or town). What grandfathering does is it allows older buildings to be remodeled, but slowly requires them to be updated as they are remodeled and upgraded by percentages.

Customer:

what might be some defenses or arguments for setback issues. for example, if the setback requirements main purpose is fire safety, could i install a sprinkler system in oreder to get around the requirement. or can i use/add specific materials for example.

Customer:

As for the grandfathering issue i am willing to makeupgrades to the electrical plumbing etc. what i would really like is to keep the structure where it is, so how does grandfathering play out as to the structure only.

William B. Esq. :

Usually set backs are for wildland interface (wild fires, or fire spreading from one home to another). So you may be able to show a fire retardant exterior surface for example. But I do not know specifically why set backs are required in your instance. You can usually find the reason for setbacks in either the code sections themselves, or in the city council minutes that go along with passing them (there are usually notes, studies, or some other short summary that says why they put them in place). Once you know why they have a set back, you can address it more effectively.

William B. Esq. :

Grandfathering is very specific. It only applies based on the specific thing that you are trying to do. So, if they are trying to move your structure, read through that specific code, there may be a clause or sub section that allows homes built before a specific date to be exempt, or exempt unless xyz happens.

Customer:

how does that apply when you have both issues going on. the question of the setback issue combined with the issue of potentially being over the lot line for many years. do the california cases grant me an easement etc. over the property being encroached on or any other legal leg to stand on. Thus allowing me to argue that the garage is legal as it stands now. as for looking at the code can you shed more light as what I have read so far is so general that it was my assumption that specific issues must be controlled by case law since the code itself is so simply written.

William B. Esq. :

The problem in your case is that the garage as it currently stands is encroaching on your neighbor's property. Unless you actually file a quiet title action in civil court to obtain title to this small section of land, you do not have clear title to the property (you are also not paying taxes on it, which is of interest to the City).

Customer:

in your opinion at what level of encroachment would an argument that the envroachment is de-minimus

William B. Esq. :

Whatever the margin of error is for a surveyor. (lot lines and lot line disputes are very contentious, and in my experience there is no such thing as a de-minimus encroachment, particularly when you are on the receiving side).

Customer:

do you know what the margin of error is for a surveyor. would this be larger based on settling issues?

William B. Esq. :

I do not. This depends on terrain, the accuracy of the existing survey stakes and some other factors that I have to leave to those experts.

Customer:

could you suggest where i can find that type of information. I was hoping it would be in the case law since i have not been able to find that type of detail anywhere else.

William B. Esq. :

My apologies, given the forum I just want to make sure we are talking about the same thing. Are you asking about how to find the amount one person is able to encroach onto another person's land?

William B. Esq. :

The Civil Code Statute governing trespass (also covering encroachment) may be found here: http://law.onecle.com/california/civil/1708.8.html


 


Here is an article regarding Adverse Possession in California (it is written by CalTrans Attorneys so there is some statutory law specific to the state at the end of the article that does not apply, but I provide it to customers because I like the clarity of the description that is used) http://www.dot.ca.gov/hq/row/landsurveys/Study_material/California-Adverse-Possession.pdf

William B. Esq. :

Finally, here is the code section for "quiet title" if you choose to defend or claim property to which you have a property interest that is "adverse" to someone else (these are very proceedurally intense claims and counsel is highly recommended): http://codes.lp.findlaw.com/cacode/CCP/3/2/10/4

Customer:

no. i am trying to find what level of "apparent" encroachment might be considered so minor as to be considered non-actionable. In otherwords i am looking for the argument/s that an attorney would use in my defense should this type of issue go to court. I feel it is unfair for me to have to go through the expense of moving my garage when i bought it in its current position along with any rights gained over the long time it has existed. In other words, what would my attorney argue to paint a picture where I am not encroaching whether by an argument of margin of error or by a legal right gained do to the long history.

William B. Esq. :

If the neighbor brought an action against you, you would assert the defense of adverse possession. This would apply in your favor. It is not deminimus, but it is clearly an "open and obvious" intrusion into the other property - a necessary element for adverse possession.

William B. Esq. :

Did you purchase title insurance when you bought the property?

Customer:

I will look through these links thank you for providing them. Yes i did and that was my next question. Would that insurance cover this type of issue?

William B. Esq. :

Yes, title insurance should defend you in any such claim.

William B. Esq. :

Furthermore, if you run into difficulties with your permitting due to property line issues, you have the option of tendering that to your insurance company as well.

Customer:

do you mean my regular property insurance? as in what most of us think of as fire insurance.

William B. Esq. :

No, your title insurance. The insurance you purchase during escrow when you are buying the property. (They will be the ones that run the title on the property to look for liens, and easements, etc.

Customer:

got it. i understand. but now that you said that, let me be repititious in order to clearly understand.

Customer:

some of these issues will likely be covered by my title insurance. might any of these type of issues be covered by my hazard/fire insurance.

William B. Esq. :

No, these issues will only be covered by your title insurance. The issues that your title insurance would cover would relate to the property line issues with your neighbor, and possibly the placement of any structure on your property.

Customer:

that helps. once i read the links you suggested will i contact you again if i have more questions regarding this matter.

William B. Esq. :

That sounds good. With your permission, once you are satisfied this evening, I would like to switch our conversation over to our "Q&A" format, it works more like e-mail than "chat" but I will get a notification as soon as you send me a message so that I can respond. Our entire conversation will be displayed in a single thread.

Customer:

thats fine. thanks

William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2936
Experience: Civil litigation attorney for individuals and businesses.
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