Legal Question in Real Estate Law in California

Re: Seller Disclosure Law

How can you sue for failure to disclose a fact already known to you? You had the property surveyed prior to closing escrow. At a bare-minimum, that put you on inquiry notice as to the rights that encroaching neighbors may have acquired to the property you were contemplating buying. Your remedy at that time would have been to negotiate a better price in light of this encroachment, or to walk away from the deal. Because you had actual knowledge of the encroachments when you bought it, you bought it subject to those encroachments, and no, the seller is most likely not liable to you for anything. You may want to consult with an attorney to review the facts in more detail, but from what you posted I would have to say you bought property with a title defect which you accepted.

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Re: Seller Disclosure Law

The seller need only disclose what he/she knows, or in some cases, with reasonable diligence should have known. Whether the seller had, or should have had, knowledge of the locations of the boundaries may depend upon whther the seller was a resident or non-resident owner, how long he/she owned it, and other factual considerations. There also may have been neglected duties by the seller's agent and/or buyer's agent.

Having said that, the most troublesome aspect of a possible suit for damages is that you facts seem to show that you had a survey done and knew the true location of the property lines - and therefore may have possessed more information than the seller!

However, a suit for failure to disclose is not your only possible remedy. Has the neighbor claiming a prescriptive easement taken any steps to enforce it? You may be able to bring a quiet title suit or suit to remove cloud on title asking the court to rule that there is no prescriptive easement. There is a growing body of decisional law in California that prescriptive easements will not be recognized in situations where the main result of the easement is to deprive the owner of the full use of the fee. Fences, buildings, orchards, etc. are sometimes deemed inappropriate purposes for easements by prescription because they are exclusive uses and, when the owner is excluded from his own property, that is a taking that requires fulfilling the stricter requirements for adverse possession, including payment of taxes.