Legal Question in Civil Litigation in California

I know you don't like the answers I gave before, but it isn't going to change by reposting your question over and over again, and no reputable attorney will give you a different opinion.

You need to start by looking at your preliminary title report from the title company and your title insurance. You will find that the encroachment and anything that would be revealed by a survey is excluded. You will almost certainly find that the legal description of the property conforms to the property you got after the partial deed to the county, and that the title company does not verify or insure against any shortages in square footage. If the litigation over the easement involved your rights, a "lis pendens" will be listed on the title report and insurance exclusions OR the title company intends to defend you. If your deed includes an easement to the open space, the title company will defend your rights. The parcel map doesn't say to whom the openspace easement belongs. If it's not in your deed, it's not you.

The title company has no duty to disclose anything to you if they are willing to assume the risk of insuring and defending against the adverse claims. If there are claims against your easment rights, absolutely take that up with the title company. I'm sure if they were not excluded from your policy, the title company will defend you or pay for any loss of value. That is the extent of your remedies against the title company.

As for your case against the seller:

1) You have to prove they knew something about the encroachment that you couldn't see for yourself. You will find in purchase and sale contract a provision that made it contingent on your right to inspect the property. You will then find another document you signed removing that contingency. If you elected not to inspect, or failed to notice things that were plainly visible or discoverable upon reasonable professional inspection, no one has any liability to you for any of them. Only issues that the seller knows about, that you did not know about at close of escrow, AND that you and your inspector could not have discovered by reasonable inspection, can give you a claim against the seller.

2) Not the seller's problem. Talk to the title company about defending you.

3) Are you sure that the lot isn't 47,000 sq.ft. AFTER the 11,000 sq.ft. deed? Is it really only 36,000 sq. ft? If so, you probably do have a claim against the seller on this one, probably both brokers too. Unless the ommission was intentional, though, you will be limited to the difference in the value of the property as advertised versus as deeded. In most residential cases that is not much, since it is the residence and the location that gives the property most of it's value, not the sq.ft. of the lot.

4) Already covered. If it's in your deed, and not excluded from coverage, the title company will defend your rights.

5) Did you really just not even look at the property? There is no duty to disclose what plants are growing wild in untended parts of a piece of property. You're supposed to look for yourself.

6) Same as 5.

Bottom line: Title company will defend your easement rights unless they were excluded in the policy, in which case they were disclosed. Everything else pretty much seems like your own failure to inspect. You released the seller from those things when you signed off on the inspection contingency. Look CAREFULLY at your paperwork about the land shortage, that might give you a small right of recovery. I'm sure the title company will be happy to help you look through everything to find the relevant documents. Be sure to bring everything to your meeting.

P.S. I used to be a Vice President and Litigation Counsel for Fidelity National Financial, parent of Chicago Title and Fidelity National Title, among others. I did not like working for them much. So I am definitely not on the side of the title companies. I'm just telling you like it is.

You may well have some valid claims. The strength of those claims, and their value, can only be determined by a thorough investigation of the history of the property and of your purchase, including but not limited to a review of the Transfer Disclosure Statement, marketing materials, your title insurance reports, etc.

A major concern, however, is your own due diligence. While the sellers and the real estate professionals have statutory and common law disclosure duties, you as the buyer also have investigation duties, and in particular, the duty to note conditions, problems and defects that are observable upon a reasonable inspection of the property. Any claims that you have against the sellers, the listing agent, your own real estate agent and/or others will be measured against your own reasonable investigation of the condition of the property.

I recommend that you immediately seek the advice of an experienced real estate attorney before proceeding any further.