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Hi I have a fairly complicated set of questions about the loss of a prescripitive easement. A landowner purchased 400 acres of land in Mendocino County , Ca. He broke the purchase terms of the agreement, and circumvented the previous owners wishes to not divide the land(via a land covenant written into sale contract) by giving the original easement back to the previous owners (who did not want the increased trraffic) and divided and put the parcels up for sale. When I purchased the land he repeatedly assured me that although the undeeded prescriptive easement would never be taken away or lost and if it was 2 things would happen: 1. He would put Us on the deed that has a prescriptive easement (a 10 acre parcel in the middle of his 80Acre parcel adjacent to mine. Or 2. he would buy us out completely w no loss on our part. After two trials ending in the CA Court of Appeals , the case for our easement was denied while the Sellers were given a partial prescriptive easement. The above verbal claims have been discussed in front our attorney, and other witnesses including a court mediator. The Sellers now refuse to honor any part of the agreement and told my Wife that they would steal our land back from us. They have not filed for a foreclosure, and we have not made a payment in 2 years. Do we have a case? What can be done?
A: Are you asking about a case as to the disregarded promises? If that is what you're referring to, then I'm sorry to say that the answer is likely no. There are two issues here. First, the promises are not likely considered a contract. In order to create a contract, there must be an exchange of promises of something of value. For example, if you agree to pay me $100 and I agree to paint your house in return, then we have created a contract. But if you promise me $100 and I do not promise anything in return, then there is no contract and I would not be able to force you to give me $100. The second problem is that even if you did create a contract when the promises were made, it would not be enforceable unless it was in writing. Oral contracts are invalid in real estate. Real estate contracts must be in writing to be enforceable.
I am truly sorry to give you this bad news, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than an honest response. However, if your concerns were not satisfactorily addressed, then please let me know, and I will be happy to clarify my answer. I do ask that you rate me based upon whether I answered your question, and not based upon whether the answer was good news or bad news. Your positive feedback is greatly appreciated. Thank you for using our service! If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
By circumventing the Land Covenant and giving the original easement away so that he could subdivide the land and sell it to make a very large profit, did he commit some kind of fraud by breaking the Original contract he had to buy it. BTW he didn't divulge any of these tactics or actions that he made concerning the subdivision of the land , he failed to say the reasons that he gave the original easement back and stated that he did so because the the previous owner casually asked him to. It wasn't until i researched into the Grant Deeds that i found this out. Was this a legal way to subdivide and sell the land especially under the pretense of his repeated claims that we would never have a problem w the other non deeded prescripitive easement etc.
Our attorney pursued the prescriptive easement which favored the sellers position more so than ours, she never discussed the option of even pursuing the Easement by Nesessity and our current attorney has stated that this where we were for lack of a better term screwed over. Should our attorney have sought an Easement by Necessity for our easement considering what would be lost, was that a mistake and can anything be done about this...?
So what your saying is that i have no other options in this situation besides living with these results?
Ok I follow your response but It seems to me that a contract was made when we met w the sellers and we agreed to continue to make payments based on a contigency plan. At the meeting we asked them to put it in writing they agreed to and asked us to send paperwork. When we sent it they refused to sign. This was during the appeal process and they even volunteered to drive us through the plaintiffs property if we would hide in the back of their truck. So none of these facts including several emails discussing the terms of the contingent contract do not sway your opinion?
What about the second part of the question that you ignored concerning the lack of pursuit of an Easement by Necessity. Also I would like to add that the reason the seller obtained a partial prescriptive judgement was bc of the acceptance of the cumulative history going back more than 5 yrs. The court viewed our parcels as lack of cumulative history bc the parcels we purchased were newly created by the sellers new boundary adjustment. This makes the seller very responsible for our loss of historical use of the land.
The third part of this is whether or not if we were put on Title as co-owners would that grant us a partial easement or would the plaintiff be able to return this to court. The judgement says nothing about this possibility. l
Ok technically we did not put this into the original contract, but before any judgement was made we said that we would not make any more payments if we lost the case, we agreed to make the contigency plan and continue to make payments after the first loss but only if they put it in writing, they then started to delay to put it in writing they balked and we stopped making payments.
Yes , the grantor originally had a total of 400 acres out of which he divided 2 seperate 160ac parcels and sold those to me keeping a 60 ac and a 20 ac parcel for himself adajacent to mine. The 20acre parcel was not in the land covenant and was a homestead going back to the 1800's. The judge in the first case censored all previous road history prior to 1969...which is beyond comprehension in my opinion. My current attorney cannot be objective about this mistake that our previous attorney made bc she happen to also represent my previous attorney as her personal attorney... You can access the judgement from the Appeals Court online by searching Hill vs. Busbee.
Dont forget about the 3rd part of the last reply please. Thank you , VAMD. Esq. for bearing through this with me, it is a very complicated situation .
JULY 3RD was your last day of communication on this issue . Are u still w me here ? Did you review this case online as specified . Has it taken this long for any specific reason? Please let me know if your still onboard?
Thanks , PMH.
VAMD, --- You said you were going to Review the case and there were still 2 issues and questions left unanswered. If you are not going to participate in this exchange can you at least give me a reason or explanation. Is it something I said ? Patiently waiting for your response. Thanks .
VAMD, --- You said you were going to Review the case and there were still 2 issues and questions left unanswered. If you are not going to participate in this exchaunge can you at least give me a reason or explanation. Is it something I said ? Patiently waiting for your response. Thanks .
The seller won a partial prescriptive easement on one of his parcels if I was put as a co owner on the title of that parcel would it give me the ability to use the road to access his/mine but also mine as well bc it borders this one.
So u still feel a verbal contract was not made or breached . Is there any advice or recommendations you have after reviewing all this very lengthy pile of information pertaining to this case, and should anything have been done differently. Please contact me should your opinion change. Even though the answers have been hard to stomach & to deal with, I think that you have answered these questions objectively and I appreciate your effort. I must also be objective as well, & in doing so I will have to report you have done a great job here.Thanks VAMD.esq. I would also recommend your services to anyone who was asking for, or in need of legal help .
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