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Ask Andrea, Esq. Your Own Question
Andrea, Esq.
Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 12554
Experience:  I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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Hello I have a retaining wall on a hill that slopes downward

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Hello I have a retaining wall on a hill that slopes downward to form at flat patio area with a nice view on my property - well, I thought it was my property as its inside a fence that I thought was the proprty line when I bought the place 17 years ago... the adjacent property belongs to San Diego City and is "open space" (scrub brush, etc.). Now they are asking me to remove the retaining wall and "restore" the land to the way it was (scrub brush). Is there any recourse I have such as a "Prescriptive Easement"? Thank you!

Hi, My name is XXXXX XXXXX my goal is to provided you with Excellent Service,

 

 

1. Who originally put up the retaining wall ?

 

 

2. Why are they asking you to take it down ?

Customer: replied 3 years ago.


Hi Andrea...


 


1. The original retaining wall was there when I bought the property in 1996, although it was of poor design and not in good condition... I rebuilt the wall with better materials and engineering principals 3 years ago and made it taller and more useful.


 


2. I had the San Diego City inspectors visit my property for complaint by an anonymous neighbor that turned out to be a non-issue... but while the inspectors were on the property they noticed the retaining wall/patio and thats when it started, since the retaining wall was built without a permit... we are allowed a 3 ft retaining wall without permits, my retaing wall is curved into a semi-circle and is approx 8ft high in the center... progressing to zero height on teh sides where it meets the natural slope of the land...

Hi, again Thank you for your additional information,

 

 

Q. Before you rebuilt the wall to its present height, was the retaining wall at the acceptable 3-foot height ?

Customer: replied 3 years ago.


no, it was approx 5 ft tall in the center and I am sure it was built without a permit since the design and materials were not actually appropriate... although not a professional, I know lots about construction and engineering practices (I am a mechanical engineer by profession) and have lots of friends that are themselves construction engineers, so I "consult" them frequently...

A prescriptive easement can only be created if the party claiming the easement by prescription knew that the property did not belong to him, but claimed it as his own. That is what is meant by "using property 'adverse' to the interests of the true owner and using it 'openly, notoriously, and hostile to the property rights of the owner". Unfortunately, since you believed that the retaining wall was on property you owned, but which, in fact, you did not own, a prescriptive easement could not be created.

 

There is no Statute covering this situation, but I believe that the City cannot compel you to completely take down the retaining wall after so many years - 17 years which you owned the property and whatever number of years your predecessor owned the property. I believe, however, that they could force you to take down the retaining wall to its 5-foot level before you reconstructed it. If I were in your situation, I would use the length of time that the retaining wall has been in existence as a bargaining chip. I would insist, for a while, that I had a right to keep the retaining wall at its 8-foot height, and then, so as to appear as if I were making a concession, I would agree to bring it down to the five-foot height. If the City insists on the complete removal of the retaining wall, then I would engage the services of an Attorney and sue the City, if necessary, in order to keep my retaining wall. The City new of its existence, at least at the five-foot level and said nothing and did nothing. It cannot sit idly by and then when "the spirit moves it", the City just steps in, disregards XXXXX XXXXX that has elapsed and demands the removal of the retaining wall.

 

_____________________________________________________________________

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

 

 

 

Customer: replied 3 years ago.


Hi Andrea;


The original retaining wall was on adjacent open space and the city claims they never knew about it, since they don't visit the location (ever). Also does it make a difference if I knew the fence line was not actually accurate? I was playing "dumb", but maybe in this case thats not a good idea?


I also have a been using a [dirt] driveway to get to my backyard (where I park my RV and work truck to keep them off the street and not an "eyesore' for my neighbors in the driveway) that runs along the same open space and itself occupies approx 25 feet of the City's open space... they have also asked me to restore the dirt road to "scrub brush" and stop using it... I have been using it continually for 17 years and also was used by the City's own "park and Open Space" personnel to do routine fire hazard brush removal and several occasions... I have known this extended past my own property but no-one complained all these years and it provides a service to the public as well as for my own benefit. Can I claim Prescriptive Easement to this area?


 

1. I am sure that the City knew about it. They just do not want to admit it;

 

2. In your situation, as you said, "playing dumb" is not to your benefit because one claiming a prescriptive easement or title by adverse possession must be doing so knowing that the property belongs to someone else;

 

3. A party cannot acquire a prescriptive easement over property owned by the City. So, Unfortunately, you would not be able to acquire a prescriptive easement no matter how many years you were to use that area

 

 

I realize that this is not exactly the Answer you were hoping for and it would have given me great pleasure to have given you the Answer you wanted to hear, but I have an ethical obligation to you to give you only correct Answers, so I am respectfully XXXXX XXXXX you not hold the law applicable to your case against me,

 

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

Andrea, Esq. and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.


Of course I don't hold that against you Andrea! I thought there might be a rule negating Prescriptive Easement when the case involves City property... darn! Well, thank you for your help just the same!


Victor

Thank you, XXXXX XXXXX do not forget to leave a positive rating so that I can receive credit for researching your question and furnishing you with Answers and information, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,



Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA