Legal Question in Real Estate Law in California

Re: Residential Purchase Issues

You really should have an attorney in your local area review the deal for you - you raise a number of issues that really aren't easy to answer in this forum without reviewing the specific facts of the matter, including the documents related to the purchase. I'll try to give you some direction on your questions:

1. You do have remedies in the event of a default by the seller, but unfortunately, without reviewing the purchase agreement, I cannot tell you specifically what you can and cannot do. At this point, as they appear to be 8 days late already in closing escrow, and we have a four day weekend coming up, you need to act quickly because its going to be December 1, 2008 very quickly, and from the way you describe the status of the deal right now, I'd suggest it isn't likely to close by month's end.

2. You need to get a hold of your title company to answer this. First, if you are buying a standard CLTA owner's policy, then the answer is almost certainly no that you are not protected with repsect to encroachments, etc... You need to spend the money and buy an ALTA with Survey policy - don't use your own surveyor, the title company will have you use an approved surveyor who will prepare the ALTA survey. By the way, I can almost guarantee that you cannot get an ALTA survey completed by month's end, and if you are not ready to close right now because of an item you need to complete, then your remedies in #1 above may become irrelevant.

3. You will need to review the specifics of this easement with an attorney - easements vary so dramatically that without reviewing the actual documents, nobody can answer that question.

*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.

Re: Residential Purchase Issues

I'm sorry, but you're simply not going to get specific legal advice on this site - you're not a 'client' as required by the State Bar Association. You're also not going to get adequate 'hints' and 'suggestions' sufficient to resolve your problems. I'm afraid you are going to have to pay legal fees to get a real consultation where the attorney can review all the contracts, documents, facts and issues with you. There is NO WAY anyone can give informed advice without doing so; and this site is not designed to take the place of attorney consultations. You've got serious issues that require serious handling, don't close escrow without doing so.

Feel free to contact me is you decide to do this right.

Re: Residential Purchase Issues

I too cannot give specific legal advice on LawGuru to a non-client.... however, a few nonspecific comments:

(1) You speak of Nov. 16 as though it were a date in the future; is it possible you mis-typed the date and meant 11/26 instead? Are you using an agent, and if so, have you asked for the agent's and broker's advice on the stumbling blocks to closing? In most deals, the buyer can elect to waive conditions such as pest reports and septic inspections, and while doing so may not be wise or may not be permissible under the terms of your financing, it's worth considering

and might allow you to close on time.

(2) If pressed for time, you could take a tape and measure the apparent boundaries yourself, and compare the measurements of the fences, etc. that seem to delineate the property with the parcel map. This would be a very rough and approximate way to track down the larger and more obvious deviations in the size of the parcel as being used and enjoyed by the seller, versus what's on the legal description. Other than that, see Mr. Gibbs' answer.

(3) Easements almost always run with the land. However, it would require an experienced real-estate lawyer to examine this "easement" document to decide whether it is a grant of an easement, or merely a license. Licenses are personal and usually expire upon the death of the holder. Easements do not go away so easily; for example, abandonment or non-use do not extinguish the easement unless the holder (beneficiary) does some overt act, such as giving the owner of the servient property an instrument in writing, although less is sometimes sufficient. (There is also now a statutory proceeding to establish the abandonment of an easement upon 20 years of non-use, Civil Code section 887.010 et seq.) Misuse ("overburden") of the easement can also be a ground to have it extinguished in a court proceeding to clear title.