Boundary Question

Jay Wright · Post by **Jay Wright** » Wed Feb 04, 2015 12:52 pm

What would you tell my client who hired me to check the neighbors survey that shows, (and my measurements thus far agree with)

1 The client's antecedent (family member) had cut a lot out by deed that included a portion of the clients garage that existed before the deed.
(front of garage 3' over the line, back of garage 0.5' over)
And
2 cut out a lot by deed on the other side that included a portion of the clients home that existed before the deed.
(front of home 3' inside line, line hits about midpoint and rear of home 4' over the line)

Limited background:
Clients family owned a big chunk of dirt and sold it off by
Tract Map which conveyed 3/4 of the site and then a Parcel Map which
left OO (original owner) with 3 small lots.

OO deeded to one family member the lot, which contained a portion of the garage, to build a house on. (holding the metes and bounds)

OO deeded to another family member the lot, which contains a portion of OO's home,to build a house on. (holding the metes and bounds)

Deeds close within reason, found monuments from the Tract Map and Parcel Map which are senior to client, no material discrepancy in measurements.

All structures were built prior to any lots leaving the family. (parole)
Still trying to get copies of the permits/plans on some of them.

Fences are not old, replacement fences follow improvements.

Do I know for a fact it was OO's intention to keep the garage and residence as they existed at the time of the grant deed?
Or does the deed show the intention?

Does the clock start on prescription as soon as the abutting properties leave the families ownership?

Before?

I would appreciate any relevant thoughts on the matter, I'm obviously doing a Record of Survey and will be ripping my hair out a little.

Jay

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Wed Feb 04, 2015 3:42 pm

The original owner maintained exclusive control and occupation of the whole garage and the whole house?

This reminds me of a Three Stooges Episode...
Curly complains that he only gets a ham bone and egg shell while Moe and Larry get half the egg and half the ham. Moe replies, "You get a whole egg shell and a whole ham bone while we each just get half an egg and half a ham each and you are complaining?" Curly saw the light.

It seems the Deeds don't truly represent the intentions of the parties and may be able to be reformed but it would be best for the affected parties to come to some sort of settlement. I wouldn't draw the heavy line through the house and garage in that situation with out some sort of agreement between the parties...either they agree it's an encroachment or they agree to fix it somehow.

Cody Hustead · Post by **Cody Hustead** » Wed Feb 04, 2015 3:56 pm

So far you have parole evidence and some occupation lines (house & garage), versus numbers in a deed. It could be an even split in terms of weight (there are many variables, of course).

Check (all) previous vesting document legal descriptions (title chain) to make sure the current vesting doesnt contain transcription errors.

I would also perform an extremely diligent field search at a more reasonable line location. If the parole evidence and occupation lines (house & garage) truly reflect intent, I suspect you would find other evidence too, at the truly intended line location (mons not of record, vegetation lines, fence remnants etc.)

Good idea to get the house permits/plans. ANY historic plans/permits for the property might contain evidence which could expose errors in the deed.

It goes without saying that there are many variables and nuances in a situation like this. Good luck interpreting and weighing everything out!

Jay Wright · Post by **Jay Wright** » Wed Feb 04, 2015 9:10 pm

Dave The Original owner and heirs have always retained exclusive use of home and garage.

Cody All the deeds I have found for the clients property so far have the same transcription error, one course called out as a S x degrees W instead of S x degrees E, other than that they close within a couple of tenths and the distances are stated as more or less so I say it closed.

Interesting note, found the permit for the garage project and a note from 1960 stating "Project completed without inspection"

Thank you

LS_8750 · Post by **LS_8750** » Wed Feb 04, 2015 9:47 pm

Without testimony concerning grantor's intent, and throwing that down on your map to everybody's dismay, you are looking at lot line adjustments.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Thu Feb 05, 2015 6:00 am

See French v. Brinkman, 60 Cal. 2d 547 (1963) for a discussion of the Doctrine of Practical Location.

In that case French owned adjoining lots, one with his house, wall and pool house and the other vacant. French sold Brinkman the vacant lot by lot/block/tract description. Later the wall was found to be over onto the vacant lot and Brinkman wanted it moved to the lot line. The Court ruled the Doctrine of Practical Location applied because Brinkman could see the physical lot he was buying and knew about the wall, etc.

RAM · Post by **RAM** » Thu Feb 05, 2015 7:51 am

So what would it take to prove the intent vs. the cost to survey, create boundaries by the improvements and LLA, document with a Record of Survey. Downside to LLA is you need the co-operation of all involved.

Anthony Maffia · Post by **Anthony Maffia** » Thu Feb 05, 2015 8:35 am

Upside to an LLA is it the boundary issue is resolved now and won't hinder future land transactions and financing. Sounds like the seller wrote his own deed instead of hiring a surveyor.

Jay Wright · Post by **Jay Wright** » Thu Feb 05, 2015 9:47 am

I am the only one who knows about the house side issue, am (re)checking my fieldwork and notes and telling the client today.

Could be an amicable LLA

Garage side is lawyering up and client already has. Might be past the point of agreement of sky color.

dmi · Post by **dmi** » Thu Feb 05, 2015 10:23 am

Is this in Silverlake?

dedkad · Post by **dedkad** » Thu Feb 05, 2015 12:28 pm

Were the 3 lots part of the Parcel Map or were they remnants left over after the Tract Map and Parcel Map recorded? What year were the deeds conveyed?

Jay Wright · Post by **Jay Wright** » Thu Feb 05, 2015 5:09 pm

Dane- it is in the San Jose area

Dedkad- Remnants left over after the Tract and PM. Deeds were late 1960's.

PLS7393 · Post by **PLS7393** » Sat Feb 07, 2015 8:13 am

I like the French v. Brinkman reference and it can be used in your discussion with client and neighbor, if you become mediator. Hopefully the two adjoining owners are willing to work it out without going to court, and save one another a lot of money.

E_Page · Post by **E_Page** » Mon Feb 09, 2015 7:49 pm

If the structures predate the original deeds of the cutouts, then you have very strong evidence that the dimensions recited in the deed are faulty. If this land is still all in the family, or if there are family members or neighbors old enough to recall how the cutout lots were measured, then you have a good place to start to get more info to lead you to the original boundaries.

It's a pretty sure bet that the intent of the original parties was not to create lines that passed through the house and the garage, so you need to find out how the cutout lots were measured, who measured them, and what they measured from.

In a case like this, you resort to the recited dimensions only in a total absence of evidence that will lead you to the boundaries. Since you have the structures that fall on the mathmagical lines, you have evidence of where the lines do not exist.

If you fail to find sufficient additional evidence to lead you to where the original lines are, then you have uncertain boundary locations (since the only locations indicated by the dimensions are certainly not the correct original locations). That would mean that the proper vehicle to fix the problem would be a Boundary Line Agreement. But good luck convincing the County of that. They will see numbers, be able to cogo it out and most likely be of the opinion that a competent surveyor could locate those boundaries. (Confusing what is supposed to be a boundary problem based on evidence with an engineering problem based on math)

Again, if you fail to find sufficient additional evidence, the remedy of likely least resistance will be Lot Line Adjustments with dimensions that work to locate the lines reasonably, and new descriptions that call to monuments, and if the lines are based on the locations of physical features, ties to those features cited in the descriptions. Better yet, show it all on a RS and refer to the RS in the new descriptions.