Legal Question in Real Estate Law in California
property line problem
My husband and I bought a house last year owned by a real estate broker. The property is next to a vacant lot, and the previous owner pointed out where our property ended and the vacant lot began. He pointed out a spot that was ''about'' where he believed the propertly line to be. Now, the owner of that vacant lot is building a home, and a survey has revealed that not only is the property line nowhere near where the previous owner said, but in fact 3 feet of our driveway is on our neighbors property. It is going to cost us several thousand dollars to remedy the problem. Do we have any legal recourse for getting this money back either from the previous owner or the title company that gave us insurance? Also, we did sign an arbitration clause as part of our real estate sales agreement, how does that affect our options?
Best,
Anita Swanson
2 Answers from Attorneys
Re: property line problem
How long has the driveway been there? You may be able to prove some kind of easement right to the neighboring property. At the same time, check your purchase agreement for your rights against the seller--it's probably arbitration, and you may have a certain time in which you can request it, so act quickly. Check with a real estate attorney who can review all the facts and give you your options.
Re: property line problem
Well, here's a 'first take' on the problem you describe.
Going after the title insurance is worth a look by a local real estate attorney, but my experience is that the policies are written so as to insure only your ownership of the property in the legal description, without reference to where that boundary lies in the real three-dimensional world.
On the other hand, the seller, who is a broker and who presumably acted as his own broker without another seller's broker or agent, seems to be in violation of his disclosure responsibilities. You can probably argue that he had a duty to ascertain the boundary with greater accuracy in any event, and especially before making even a vague representation to you about its location.
You matter will probably have to be arbitrated, and that may not be a disadvantage. However, if you had a strong preference to go to court instead of to arbitration, you might be able to void the arbitration clause on the ground that the seller acted fraudulently and that the fraud makes the entire agreement, including the arb. clause, voidable at your election.
Your choice might be dictated by the remedies available, including attorney fee provisions.
If the seller has a reputation to uphold, he might be very willing to settle upon being contacted by your attorney. You will need to document all your facts, including the results of the neighbor's survey, in order to quantify your money damages claim. Also, whether you go immediately to mediation/negotiation, arbitration or the lawsuit route, you will need to consult with a real estate attorney who practices in the county where your property is located.
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