Litigation Involving Real Estate
One of the most common claims brought against sellers of real property and real estate agents is the allegation that they failed to disclose relevant conditions about the property that materially affects the value of the property. Victoria has handled many such cases, ranging from the failure to disclose that the property had experienced earth movement requiring extensive past and future foundation repair, to claims that the seller failed to disclose a “problem tenant”. Disclosure cases are generally fact intensive, and they are seldom able to be resolved as a matter of law alone; the judge or jury will have to determine whether the undisclosed facts had a significant and measurable effect on the market value of the property. Much litigation turns upon what the seller knew or reasonably should have known, and whether the real estate agent performed a diligent visual inspection of the property and correctly noted “red flag” items that could have tipped the buyer off to a significant potential problem. Victoria has worked with both plaintiffs and defendants in such cases, and will assist clients in resolving these cases through mediation, arbitration, or trial if necessary, in a cost-effective manner.
Another common issue involving real property involves the claim of one neighbor to hold an easement in the property of another. Typically, particularly in Orinda and “semi-rural” areas, these easements are for access to property which is hilly and difficult to reach. Sometimes easement claims arise from the fact that in rural areas, the land surveying has been inconsistent, so that the neighbors truly don’t know where their actual legal boundaries are, and fences and landscaping may have been placed years ago in the wrong areas. Sometimes a party to an easement dispute will attempt to state a cause of action for a prescriptive easement in his neighbor’s property. This would mean that even though a recorded easement was never granted, the neighbor claims that use of the neighbor’s property over time has resulted in the legal right to continue that use. However, California law has been quite clear in the last several years that one cannot acquire an exclusive prescriptive easement in the land of another. This means that a use which will not allow the neighboring property owner to also make use of his or her own property will not be allowed. So, for example, maintaining a garden on a neighbor’s property which prevents the neighbor from expanding his residence, will likely not be allowed as prescriptive use.
Victoria can work with the parties to understand what the scope of the easement actually is, and what the obligations are with regard to the easement. For example, an easement that was originally granted to allow access by one family to a single family residence, cannot be “surcharged” without agreement, meaning that it cannot be expanded to become a four lane highway! It is also important for the parties to understand what the maintenance and repair obligations of the parties to an easement are. Victoria will work with both plaintiffs and defendants to protect their property interests and the value of their real estate investment.