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TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 9587
Experience:  Licensed to Practice Law
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Landlocked Parcel in Ca

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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?

Submitted: 1 year ago.
Category: Real Estate Law
Expert:  TJ, Esq. replied 1 year ago.
Hello and thank you for allowing me the opportunity to assist you.

Q: 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.

TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 9587
Experience: Licensed to Practice Law
TJ, Esq. and 4 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

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?

Expert:  TJ, Esq. replied 1 year ago.
Hi again.

I don't see any fraud here. Failing to follow a covenant is not fraud. The person who has the power to enforce the covenant may or may not choose to do so. If he chooses not to do so, then the other party may act, but it's not fraud.

To give you a very detailed in-depth analysis, I'd have to meet with you in person and review all documents and facts relevant to this case. But based on what you wrote here, it does not sound like you have recourse.

I wish that I had better news.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 9587
Experience: Licensed to Practice Law
TJ, Esq. and 4 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

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

Expert:  TJ, Esq. replied 1 year ago.
Hi again.

You wrote: 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.

Response: Can you clarify what you mean by "continue to make payments"? It is a basic premise in contract law that a contract cannot be created by promising to do what you were already required by contract to do. Recall my earlier example of house painting. A contract is created because you offered $100 and in return I agreed to paint your house. Let's say that I painted half of the house, and then demanded an extra $50 to finish painting the rest of the house. If you agree, and then I finish painting the house, then you only owe me $100. You do not owe me $150. My promise to paint the rest of the house for the extra $50 does not count as promising something of value because I already legally owed it to you. So, if I were to sue you for breach of contract for the extra $50, a judge would rule that no contract was created when you promised me the extra $50.

So, when you wrote that you "agreed to continue to make payments," I'm trying to determine if you already had a legal obligation to make those payments, or if you had the right to stop making payments. If it's the latter, then you may have created a contract when you agreed to continue paying.

As for easements by necessity, I apologize for not responding to that earlier. I became so focused on the first part of your question, I reponded before moving on the the question about easements by necessity. Please accept my apologies.

According to CA case law:

"Generally, an easement by necessity arises from an implied grant... when a property owner (the grantor) conveys to another (the grantee) one out of two or more adjoining parcels of the grantor's property. When there is no express provision for access, and the parcel conveyed is either landlocked entirely by the parcels retained by the grantor or landlocked partly by the grantor's retained land and partly by the land of others, the grantee may claim an implied grant of a right-of-way of necessity over the land retained by the grantor." Collins v. Park Lands Ranch, LLC (Cal. App., 2010).

Can you clarify whether the grantor in your case retained part of the land? I originally read it that he did not. Am I mistaken?
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 9587
Experience: Licensed to Practice Law
TJ, Esq. and 4 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

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 .

Expert:  TJ, Esq. replied 1 year ago.
Hi again.

I just wanted to let you know that I haven't forgotten about you. I logged off last evening before your latest response, so I am seeing it now for the first time. I will respond later this evening, though it may be a few hours. Thank you for your patience. I will also review the case online.

Thank you.
Customer: replied 12 months ago.

To VAMD,

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 .

Customer: replied 11 months ago.

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 .

Expert:  TJ, Esq. replied 11 months ago.
Hi again.

I'm terribly sorry for being away for so long. I have been away from this website due to personal issues that unfortunately took precedence. I am here now, and am currently preparing a response to the remaining issues.
Expert:  TJ, Esq. replied 11 months ago.
Hi again. Thank you again for your patience, and I again apologize for taking so many days to get back to you. Tonight is my first time back at the website in two weeks due to an emergency that I was dealing with. But I will be online tonight for another hour, and against tomorrow night.

In reviewing the case online, I now have a better understanding of the situation. However, I do not believe that you would have an argument for an easement by necessity because the easement that you want to use is the road owned not by the person who sold you the property, but by a third party. An easement by necessity is granted across a seller's property when the seller divides a larger property into two or more smaller properties in which one becomes landlocked. In this case, my understanding is that you do not want to use a road that crosses the seller's property, and instead you want to use the road that crosses a third party's property. Your attorney was correct not to make that argument.

You also asked: "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."

I don't quite understand that question. Can you clarify?
Customer: replied 11 months ago.

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.

Customer: replied 11 months ago.

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 .

Expert:  TJ, Esq. replied 11 months ago.
Hi again.

If you were part owner of the land that had the prescriptive easement, then you could use the road since the right to use the easement follows the land. The problem, however, is that you'd only legally be able to use the road when you use the parcel with the easement. If you used the easement for other purposes (such as when you use your own land), then the owner of the road could theoretically block you in court for abusing the easement.

I will definitely update my answers if I can think of anything else, or any changes to the information that I've provided. I just wish that I could have given you better news.

I appreciate that you will recommend our service to others, and I apologize again for taking so long to get back to you. Thank you for your understanding.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 9587
Experience: Licensed to Practice Law
TJ, Esq. and 4 other Real Estate Law Specialists are ready to help you

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