occupation vs title

Man of Chain
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occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 8:53 am

Hi all, I've got a gross encroachment by my client (Hayes) on to the lands of Jacobs. I am reaching out to try to find a solution that is equitable.
Some facts and history:

The monuments shown by solid black circles were from a 1980's BLM survey, they agree with and hold a 1955 survey of the section of which the subject parcels are aliquot parts, or at least their point of beginnings and general location are based on in their respective legal descriptions.

The occupation lines do not seem to be based on a survey but rather one was built and the others built on the assumption that the first was correct.

I can see that on aerial photograph from 1955 there were no structures or occupations present before the 1955 survey. I believe the first occupations occurred around the 1960's or 1970's.

I will explain any further matters of history or survey, title, etc. as questions come along (hopefully)

My first idea was to quitclaim that portion of the Hayes' which is encroaching onto Jacobs from Jacobs to Hayes. A real estate lawyer involved felt that that may be a violation of the subdivision map act and result in unmarketable and uninsurable title though and has informed Hayes to pursue litigation against Jacobs to quit title by claim of adverse possession for which the statutes have almost certainly been met. The way the lawyer sees it, the parties have been paying taxes on the deed parcels and the improvements. So he would like me to write a legal description for the portion encroaching and have the court adjudicate it to the Hayes' and become an addition to their existing parcel. I've got issues with this method as I am almost certain it will lead to further litigation by the contiguous parties.

please share your thoughts and knowledge that you can at this point and I will try my best to answer questions and further the conversation.

Enjoy!
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Man of Chain
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Re: occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 9:01 am

Image

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Ian Wilson
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Re: occupation vs title

Postby Ian Wilson » Wed Mar 31, 2021 9:19 am

How large are the parcels? Would the quit claim create parcels that violate local ordinance?

If Yes, you may need to go through an SMA process.

If no, a Lot Line Adjustment is the prefect tool to clear up problems such as this.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor

Man of Chain
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Re: occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 9:38 am

The parcels are one acre and one half acre respectively. Zoning is 2.5 Acre minimum so none of these are legal conforming parcels. But they are non conforming legal parcels due to the long term occupation.

A lot line adjustment, in my opinion, is to obtain the counties approval as to a legal conforming and buildable parcel. I don't think we want to involve the county or alert them to the other problems with the parcels here such as well and septic separation, well casing depths and zoning and setback conformity. Also the county here is extremely short staffed and typically completes a LLA in one to two years, which is longer than my clients would like to wait.

Thanks Ian

Man of Chain
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Re: occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 9:44 am

Image

Man of Chain
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Re: occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 9:51 am

My thinking was that by quit claiming and and re-interpretation of the deeds to match them with the occupation that the quit claim would be like a LLA but not sanctioned by the county and not therefor create a new parcel?

I think a reasonable fence line surveyor would come up with a resolution that is like the above exhibit.

What about re-writing the deeds? as well as a series of quitclaims? is that a thing we can do? if so would a title company insure marketable title?

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Ian Wilson
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Re: occupation vs title

Postby Ian Wilson » Wed Mar 31, 2021 10:01 am

You have a mess. If you start moving lines around, you're re-subdividing and you need to perform a map action...unless...

PM sent.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor

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David Kendall
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Re: occupation vs title

Postby David Kendall » Wed Mar 31, 2021 10:04 am

What county are you in? Humboldt has a boundary correction ordinance which reads like this:

Boundary Correction Ordinance.pdf


This is a useful tool for these types of situations. I expect that you will want to have Jacobs and Craig on board

Beyond that you are likely facing some Planning agency or civil court gymnastics. Don't wait up.....
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Man of Chain
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Re: occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 10:51 am

Rather than "moving the lines around" couldn't one assume that the POB of the legal descriptions was in error due to the lack of a survey and therefore be adjusted to roughly fit what is found in the field?

The deeds are written by assuming a perfect section was in place before any survey other than the original GLO survey, which shows a nearly perfect section.

I think a reasonable surveyor not wishing to "upset the applecart" would determine that the deeds could be interpreted to be as shown on exhibit B. I think only a "deed staker" would determine that the deed is exactly where it intended to be.

I will check with my county surveyor to see if we have an ordinance like the one you posted, that would be so useful around here!

Thanks so much for the input all, really appreciate you taking the time to help me.

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E_Page
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Re: occupation vs title

Postby E_Page » Wed Mar 31, 2021 12:51 pm

Attorneys almost always go for the most adversarial approach first which more often than not turns friendly or civil neighbors into lifelong bitter enemies.

If you had 4 or fewer parcels involved, you were on the right track with QCDs, but via the LLA process. That does not create new parcels.

Ian is very good at coming up with viable solutions most would not think of. I suggest having a conversation or meeting with him to come up with one or more possible solutions which would cause the least consternation and conflict between the landowners.

The trick that jumps out at me is finding a solution where Jacobs won't feel like the biggest and only loser in the deal.
Evan Page, PLS
A Certain Forum Essayist

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mpallamary
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Re: occupation vs title

Postby mpallamary » Wed Mar 31, 2021 1:26 pm

Did you consider getting a certificate of compliance issued for the existing parcels, so as to ratify the area of the lots and then process a lot line adjustment and new COC.

Issuance of a COC and LLA is ministerial. If you went to a LLA first, you could confuse the planners.

After you are done, prepare a ROS reflecting the approved COC. Before you do that, engage a title company to make sure they will insure the final project. LOOK OUT for septic field issues.

If permits have been issued, you are entitled to the COC. Obtaining the COC is perhaps the first and most important step to take. If you go to the LLA first, they may challenge you on lot size. If you walk in with an already issued COC, that concern should be moot.

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mpallamary
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Re: occupation vs title

Postby mpallamary » Wed Mar 31, 2021 1:27 pm

I would post an example but it is prohibited.

Man of Chain
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Re: occupation vs title

Postby Man of Chain » Wed Mar 31, 2021 2:40 pm

Got ya, thanks Mike. I may be able to obtain a CoC rather easily. I will consult with my county surveyor before approaching planning about a LLA.


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