Purchased Private Street - In San Francisco

[timd354]

If they've been parking on it for the past 20, 30, 40+ years he very likely cannot stop them from continued parking.

Why would you think that? For most of the past 20, 30 40+ years, the street was owned by the HOA and the homeowners had permission of the HOA to park on the street. It is only in the past 1-2 years, that the street has been owned by someone else and thus not enough time (which is 5 years in CA) has passed for any sort of adverse possession or prescriptive easement claim which among other things requires the possession or use of the land to be "hostile" (which means without permission - which clearly has not been the case until the present owner purchased the property)

 

[Mark K]

Why would you think that?

Because the owner purchased the real estate subject to existing easements...including easements of-record and those not of-record. The conveyance of real estate does not extinguish easements. I think any court would agree that the owners have the right to use the road for the same continued purpose as prior to the transfer. The use of the road could fall into the same category as an easement by necessity.

That is, unless CA has some unique and bizarre real estate laws, which would not surprise anyone.

 

[timd354]

Because the owner purchased the real estate subject to existing easements...including easements of-record and those not of-record. The conveyance of real estate does not extinguish easements. I think any court would agree that the owners have the right to use the road for the same continued purpose as prior to the transfer. The use of the road could fall into the same category as an easement by necessity.

That is, unless CA has some unique and bizarre real estate laws, which would not surprise anyone.

The street owned the HOA, so I doubt that there were any easement of record and since the residents undoubtedly had permission to park on the street during that whole time, the requirements for an easement by prescription have not been met. You need to refresh yourself on what it takes to establish an easement by prescription or adverse possession (the CA law is pretty typical except for the time period only being 5 years). It is very possible that the residents would be judged by a court to have an easement by necessity to access their homes (thus I don't think the street owner could completely cut off access), a right to park on the street would not be established by an easement by necessity to access their properties. An easement allowing the residents to park (assuming that there is no recorded easement which seems to be the case) would have to be established through a prescriptive easement and simply put, the requisite 5 year period of "hostile" possession/use has not been met since the residents previously had permission to park on the street. BTW, the current owner can reset the clock at any time by simply giving the residents permission to park on the street for a period of time.

 

[Michigan CG]

What would have been your solution to this issue?

The city all but admitted it screwed up in this deal. The city needs to pull out the checkbook and compensate the investor.

 

[Elliott]

Maybe the "investors" can start a go-fund-me page and get their "profit." Anyone want to donate?

 

[timd354]

The city all but admitted it screwed up in this deal. The city needs to pull out the checkbook and compensate the investor.

Actually, the city did not screw up anything until they voted to rescind the sale. All existing laws and protocols were followed and the city should have stayed out of it and let the homeowners deal with the investor/rightful property owner.

However, the fact is that a lot a of powerful rich people live in that neighborhood and many of them undoubtedly donate a lot of money to political campaigns, so the corrupt politicians did their bidding. How many tax sales have been rescinded by the SF City Council when the property owner has been just some poor down on his luck schmo? I would guess that the answer is zero

 

[Michigan CG]

Actually, the city did not screw up anything until they voted to rescind the sale. ..........

I interpret the below to say that the city is to blame for this

And, we are moving to implement policy reforms (to) the current broken process that allowed this sale to happen in the first place, so that this situation does not happen to any San Franciscan ever again

 

[Mark K]

Obviously you know CA easement law better than I because in this state, you cannot 'reset' a time period for a prescriptive easement simply by giving permission every now and again. And in this state, the buyer would purchase the property subject to the right of the owners continued use of the road for ingress/egress/parking since they've done it for 30-40 years+. Like buying an elephant. Now that you have it, what do you do with it?

Its a moot point now. I kinda hope the buyers take it to court, for no other reason than to see what a judge would say. I think a judge would side with the city.

 

[timd354]

Obviously you know CA easement law better than I because in this state, you cannot 'reset' a time period for a prescriptive easement simply by giving permission every now and again. And in this state, the buyer would purchase the property subject to the right of the owners continued use of the road for ingress/egress/parking since they've done it for 30-40 years+. Like buying an elephant. Now that you have it, what do you do with it?

Its a moot point now. I kinda hope the buyers take it to court, for no other reason than to see what a judge would say. I think a judge would side with the city.

Actually, in Indiana, the prescriptive easement (if one even existed) would have been extinguished by the tax sale (I don't if the same thing would apply in CA, but it might):
https://www.theindianalawyer.com/ar...-couple-not-entitled-to-prescriptive-easement
According to the digest of this case, under Indiana law, any and all unrecorded easements are extinguished by a tax sale.

By the way, IN law requires 20 years of uniterrupted adverse use for 20 years in order to have a prescriptive easement:
ARTICLE 23. CONVEYANCE OF PROPERTY INTERESTS LESS THAN FEE SIMPLE

IC 32-23-1
Chapter 1. Easements: By Prescription

IC 32-23-1-1
Use for 20 years
Sec. 1. The right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years.
As added by P.L.2-2002, SEC.8.

What you fail to understand is that the use must be an uninterrupted adverse use for 20 years (By the way this is the standard in most states as that is the default Common Law standard) and if that use ceases to be adverse (i.e., the property owner grants permission for the use or the user of the prospective easement stops using the easement for a period of time), the 20 year clock starts over.

 

[Mark K]

(i.e., the property owner grants permission for the use or the user of the prospective easement stops using the easement for a period of time), the 20 year clock starts over.

I don't read that part in the Kennedy-esque cut-n-paste and your interpretation of common law doesn't count for much in courts in this state.

Judges have their own interpretation and I've been involved in two court cases where the 20 yr. standard was not met and the judge ruled for the 'trespassing' party. I didn't agree his decision but he didn't ask my opinion. I was there to testify re: effect on value.

In another the original owner had granted permission for a 'temporary' drive access. 30 yrs. later, after the death of the original owner, the heirs tried to prevent the neighbor from using the access; judge shot the heirs down. The heirs quoted a lot of the same things you're advocating; didn't matter. However, the cost of constructing a new access carried a LOT of weight with the judge.

What you fail to understand is that we can play lawyer all day but in the end, our opinions don't mean a thing; the only opinion that matters is the judge's, in this state, your state, and others. I still hope the original case goes to court; should be interesting if so.