Quiet title

User Forum Topic
Submitted by NotCranky on January 21, 2016 - 1:32pm

Some of you might remember that I have and trouble with a neighbor over an easement. I have still been using an alternate road. Well things came to turning point and I am interviewing attorneys.
The big easement problem is that the neighbor destroyed my road and obstructs the way with tractors and now fences.

So anyway , my question is why does taking the obstruction to court require a quiet title action when the title is perfect? Does anyone know that? So far two lawyers presented large scopes with this quiet title action as one part of it. Why a huge scope to get some court orders on clearly rogue behavior from the owner of a servient tenement?

Any ideas how to tell the lawyers to proceed?

Submitted by bearishgurl on January 21, 2016 - 2:02pm.

blogstar wrote:
.... Why a huge scope to get some court orders on clearly rogue behavior from the owner of a servient tenement?

Russ, I can't give you legal advice and will assume you already have an attorney to whom you can ask your questions.

My three questions for you are:

How long have you been "looking the other way" while the user of your "servient tenement" displayed their "rogue behavior?" (Talking to them about it and not serving them with any papers is technically "looking the other way.")

Did you notice if the user of your "servient tenement" was displaying this "rogue behavior" when you first viewed the property prior to placing an offer on it? (If so, that could have been the main reason the property was listed at that time.)

Was it disclosed to you in your transfer disclosure statement or preliminary title report while you were in escrow to buy the property that a [named] user of a servient tenement had certain rights to that particular easement? If so, what were they and do you actually have a copy of the contract?

Sorry if you've posted these details before and I missed them.

Submitted by NotCranky on January 21, 2016 - 2:25pm.

Yes, I did post about those things in another thread about 2 years ago.
i lived here first and bought the easement from the previous owner of the lot the trouble maker is on. Lawyers say no risk of successful adverse possession. I think the title company is on the hook for post insurance adverse possession. We don't have that problem though. I have tons of documentation, police reports, photos , a few witnesses etc.

The rights of the dominant and servient tenement are legally pretty clear. I have consulted with attorneys on that too, a really good one but not a litigator. That was a while back. I have plenty of rights. This is just your basic belligerent obstructionist behavior…lawyer defined him as so rogue that the judge might make a ruling on the complaint alone. Others say his lawyer will bring it to a settlement quickly, but a an unreasonable person can be lead to keep fighting by a greedy lawyer too. But my question for now is, why a quiet title action? That's an expensive add on. I am worried about lawyers blowing up the scope. I would like to hear about it from knowledgeable people who are not asking me for a large deposit. Maybe I should jut pay an hour to have someone explain it to me.

I understand that nobody on Piggington's intends legal advice and I won't construe any thing here as that.

Submitted by bearishgurl on January 21, 2016 - 2:41pm.

blogstar wrote:
...i lived here first and bought the easement from the previous owner of the lot the trouble maker is on....

Russ, when you "bought" the easement from the previous owner, did you share with him/her the cost of a survey and replatting (requires engineer stamp) so that the easement would show up on the county records (plats) as part of YOUR lot instead of theirs?

Submitted by NotCranky on January 21, 2016 - 2:42pm.

bearishgurl wrote:
blogstar wrote:
...i lived here first and bought the easement from the previous owner of the lot the trouble maker is on....

Russ, when you "bought" the easement from the previous owner, did you share with him/her the cost of a survey and replatting (requires engineer stamp) so that the easement would show up on the county records (plats) as part of YOUR lot instead of his/hers?

I am sorry BG, but that is not my question. I don't think I have problems in the direction of thinking you are taking unless it relates to why a lawyer would want to do a quiet title action. I want to know about the lawyers best scope that is in my best interest.

Thank you though.

Submitted by bearishgurl on January 21, 2016 - 3:03pm.

If you recorded the easement transfer when you bought it with the proper legal description on the recorded deed and that legal description was correct, then I believe there may still be a need for a "quiet title" action if it was never properly transferred to your plat.

All I'm saying is there may be some confusion with your lawyer as to who is the legal owner of record of your lot, even if you recorded the easement transfer.

Is the "rogue user" the new owner of the property adjoining yours or a tenant of the new owner of that property?

Submitted by bearishgurl on January 21, 2016 - 3:07pm.

If I were you, I would want everything in my name (incl my [replatted] lot) and the rights of the user of the subservient tenement explicitly spelled out if you find you legally have to honor a written agreement the previous owner had with him.

But that's just me.

Submitted by bearishgurl on January 21, 2016 - 3:33pm.

bearishgurl wrote:
If you recorded the easement transfer when you bought it with the proper legal description on the recorded deed and that legal description was correct, then I believe there may still be a need for a "quiet title" action if it was never properly transferred to your plat.

All I'm saying is there may be some confusion with your lawyer as to who is the legal owner of record of your easement, even if you recorded its transfer.

Is the "rogue user" the new owner of the property adjoining yours or a tenant of the new owner of that property?

Changes made in bold. Sorry for any confusion.

Submitted by bearishgurl on January 21, 2016 - 3:58pm.

More questions, Russ. You have not provided enough info to help you in the way that you are asking.

Did you receive a quitclaim deed or a grant deed from the previous owner of your adjoining lot when you purchased the easement from them?

Was that deed timely recorded?

Or did you purchase the superior rights to the easement without receiving a deed?

Submitted by NotCranky on January 21, 2016 - 5:09pm.

Everything about the easement is right yes yes yes. The plat I haven't verified and I don' think it matters. WHen I go to change my address the county will ask me to submit the changes and charge me some money. That's what other neighbors have done with the same easement and that's it. My title company did Easement creation and insured it. As far as I know they don't insure against people building fences in easements who have not made a legal claim in court against the dominant tenements rights. Also, it's possible that the title company only helps you if you lose and not while it's in the air or if you win! I am trying to find out more about how my coverage applies. There is still some chance we will solve this without going to court too. Not that most lawyers are keen on those possibilities.

My GUESS , quite possibly WRONG is that quiet title as suggested to me is to satisfy the judge, in case one is called on, to make any rulings on this private property. See if the defendant is going to try to make a claim ? But why not wait and see if the defendant makes that claim. So far , potential defendant admits even in writing several times, that my easement is bullet proof and he just doesn't want me to use it. That's why the definition of rogue fits him so well. He has no legal basis whatsoever and admits it.

I don't think we are going to work this out BG. We can let it go. I don't want to talk about too much just wanted to know why a quiet title was in the scope.

Submitted by NotCranky on January 21, 2016 - 5:20pm.

Threadjack,

I had no idea so many private litigation lawyers were licensed real estate brokers.

Submitted by bearishgurl on January 21, 2016 - 5:33pm.

Blogstar wrote:
Threadjack,

I had know idea so many private litigation lawyers were licensed real estate brokers.

They are. I was actually thinking of PMing you to refer you to one.

A member of the CA state bar or licensee with the CA Board of Accountancy isn't required to have four consecutive years of RE salesperson experience to qualify to sit for the RE broker exam, as everyone else is. They are allowed to sit for it by virtue of their education and licensure alone.

I would take a wild stab in the dark here and make the assumption that your title may not exactly be "perfect" as it relates to your easement, especially if that road-easement is the only egress/ingress of the servient tenement user's property.

Submitted by NotCranky on January 21, 2016 - 6:11pm.

bearishgurl wrote:
Blogstar wrote:
Threadjack,

I had know idea so many private litigation lawyers were licensed real estate brokers.

They are. I was actually thinking of PMing you to refer you to one.

A member of the CA state bar or licensee with the CA Board of Accountancy isn't required to have four consecutive years of RE salesperson experience to qualify to sit for the RE broker exam, as everyone else is. They are allowed to sit for it by virtue of their education and licensure alone.

I would take a wild stab in the dark here and make the assumption that your title may not exactly be "perfect" as it relates to your easement, especially if that road-easement is the only egress/ingress of the servient tenement user's property.

I remember that about the broker's lic. now that you say it.

Thanks, I'll let you know if I need a referral. I have interviewed 3 now. They all say quiet title even not knowing one thing about the level of perfection of my easement.

Submitted by bearishgurl on January 21, 2016 - 6:28pm.

Blogstar wrote:
. . . I have interviewed 3 now. They all say quiet title even not knowing one thing about the level of perfection of my easement. . . .

You shouldn't have had to "perfect it" if you actually, legitimately "bought it." The act of being given (legal) title to it in exchange for compensation implies that you are already the owner . . . or in this particular case, the "dominant servient."

Submitted by NotCranky on January 21, 2016 - 6:39pm.

bearishgurl wrote:
Blogstar wrote:
. . . I have interviewed 3 now. They all say quiet title even not knowing one thing about the level of perfection of my easement. . . .

You shouldn't have had to "perfect it" if you actually, legitimately "bought it." The act of being given (legal) title to it in exchange for compensation implies that you are already the owner . . . or in this particular case, the "dominant servient."


That's what I have been saying. It's very straight forward on this easement. That's why I wonder if the quiet title action isn't easy "churn" for the lawyers , or the best way to start a fight that add$ up? Or as I said earlier maybe courts are requiring it it for CYA even when title is good. Just suspicions. Maybe the neighbor's belligerent behavior and obstruction constitutes a type of "claim". That is very unfair and should result in punitive damages , which , so far from how nice I see the system treat the bad guys, isn't going to happen.

Submitted by bearishgurl on January 21, 2016 - 7:25pm.

Blogstar wrote:
. . . I wonder if the quiet title action isn't easy "churn" for the lawyers , or the best way to start a fight that add$ up? . . .

I saw this website earlier:

http://www.kinseylaw.com/clientserv2/civ...

Here is an attorney (in LA Co) who will give you a two-hour consultation and prepare the papers for you for a "quiet title action" with a "Limited Scope Representation" agreement. He charges a flat rate of $1000 for these services (see bottom of page). You will likely file the case with your Superior Court branch and have the other party served and represent yourself in court.

Maybe there is a good RE atty here in SD County who works like that (I don't know of one) or you could use the atty in the link (have phone consultations and have him prepare your suit and e-mail it to you).

There might be a problem though if the other party fails to timely respond to your suit. You will not be able to take a default judgment in this type of action and will have to schedule an "evidentiary hearing" with your opponent:

see: http://www.jdsupra.com/legalnews/default...

I'm unsure if you could handle that by yourself, especially if your opponent obtains a lawyer mid-stream.

Submitted by bearishgurl on January 21, 2016 - 7:18pm.

Here is the full cite:

Harbour Vista LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, [134 Cal.Rptr.3d 424]

For those who belong to myfindlaw.com, here is the full opinion:

http://login.findlaw.com/scripts/callaw?...

Submitted by bearishgurl on January 21, 2016 - 11:58pm.

I should add that "you will not be able to take a(n) automatic default judgment." Whether or not the defendant shows up at the evidentiary hearing, the court will make a ruling on the "quiet title" action only. The plaintiff is not obligated to serve or notify the defendant of the evidentiary hearing ... only to set the date with the court. Procedurally, the court will then send the defendant a Notice of Hearing. If the plaintiff has other causes of action pending in their complaint, they will NOT be adjudicated at the evidentiary hearing (Harbour Vista, LLC, v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496 at 1508-1509).

Submitted by Hobie on January 22, 2016 - 7:31am.

Hey Blog. I very confused. And I didn't read your other reference post to refresh memory.

1.Who owns the land?
2.Did you mention that easement is shared with other people besides yourself?
3. Not sure where the quiet title comes in. Who is wanting it? My understanding that granting an easement (permission to trespass) blocks any adverse possession action.
4. Are there signs posted stating no trespassing?
5. Do you have photos of fence and tractor blocking easement?

****************
edit:
****************

I just reread your post.

So the ass neighbor owner bought his property knowing it had a previously recorded easement granting you permission to trespass. Now he wants to sue you for quiet title thinking that will remove the easement?

I'm guessing that a lawyer letter telling him to keep off and remove the fence is necessary. Then it becomes a civil matter whereby you call cops and have tractor 'arrested'( prevent him from moving it before tow truck arrives) and towed.

Or, are you thinking sueing him for quiet title? In other words you want him to give you the portion of property granted in the easement to you. Then you are clear title holder to that piece. See #3 above.

I think you already have the correct legal stuff in order and your problem in just enforcement. ..and living next to such a jerk.

Oh, and to speak to your original question here I think the two lawyers you have just spoken with don't understand the situation or are wanting to spend your $.

This type of stuff requires and exclusive real estate specialist atty. I don't you need this right now and try not to as it get very expensive very fast. Lots of research time. Don't be lured by a seemingly low starting retainer fee. That is just a hook to get you to sign up. Slight threadjack:)

Submitted by NotCranky on January 22, 2016 - 12:15pm.

del.

Submitted by NotCranky on January 22, 2016 - 12:05pm.

No he does not want to sue me. I am being forced to sue him but want to sue him only if I have to, for interfering with the easement and maybe some other stuff against my person. The lawyers say that along with that, I need to do a quiet title. At the same time they admit that there is no way he could get away with an adverse possession claim. The neighbor knows it's mine as he has given me three different "one time offers" to buy me out. He is, one by one, trying to drive people off the easement .

He has succeeded with some old people who only had a prescriptive easement but couldn't afford to fight him. One other neighbor has the same easement paperwork I have and I think his idea is that he will try to get them last. I wish the old couple would have told me so we could work together even if I paid for it. I don't know the other family. They know he is nuts,but he doesn't do anything to them so talking to them about him might just seem weird to them. He lets them drive around the fence in the easement on a nice looking road. I don't even know if they know it's not in their easement. I doubt it. So if I let him win with me , he will be able to kick them off when he is ready!

I just want to start using the easement without stepping down to this guys level of personal conduct.

Submitted by Hobie on January 22, 2016 - 12:40pm.

At the same time, you cannot claim adverse possion against him. I'm not an attny but it seems strange to bring quiet title into this. As I see it, you have a legal easement for this roadway and he is interferring with that enjoyment. And, there are other folks that share the same easement.

Again, I think this is a civil enforcement matter not a new issue as to who holds title. Does that make sense? What about a restraining order against him?

Seems like all grantees to that easement need to band together and issue a letter communicating to the dick to keep off the easement and no further harrassment.

I would also think the prescrptive easement by the old people would help you as it shows the good use of the land longer than you have had your paid easement.

This is where the legal fees should go. Am I missing something?

Ok, so are you planning on suing for damages to repair the road plus personal stuff?

Submitted by NotCranky on January 22, 2016 - 12:40pm.

I think you've got it on the title and enjoyment. Putting it to the attorney's I have interviewed again. On the prescriptive easement of the older folks. That is a ship that has probably sailed, but I know the attorney they worked with as of yesterday so I will talk to him about it. Nice old couple and I would like to see this guy get elder abuse charges.

I am forced to sue because I am reluctant to just cut down the fence at this time and…..without a record and the punishment if being sued, he more easily goes back to "rogue" anytime he wants to. Think spoiled child.

Submitted by Hobie on January 22, 2016 - 12:54pm.

I think the question to the attny is simply, I got the easement and he erected a fence blocking it. Please write letter ordering him to remove it and put the roadway back in original condition. This add more paper trail for you.

Prescriptive easement is gold for you as it was in use before you or the ass moved in. I'd want an affadavid from old people ( assuming they will go soon) confirming the use of the road for x years. This kind of thing weighs heavily in your favor.

This kind of boundry dispute is really old law ( think Romans) and there is a ton of case law. From this distance, you and your neighbors have every right to the road and the ass needs to worry about not getting thrown in jail for harrassment or worse.

Submitted by Hobie on January 22, 2016 - 1:03pm.

I wondering if the quiet title action is a throwaway in term of negioating with the troublemaker? Seems like a non issue and just a money grab from atty.

Still not sure why you need to originate lawsuit. I'm thinking the demand letter to remove the fence and you remove it and bill him if no compliance. Then he would be the one to start a lawsuit. But for what? Trespass? Clearing the easement?

Submitted by FlyerInHi on January 22, 2016 - 2:54pm.

I'm with Hobie. Start with a letter from attorney.

Seems like some people out in the country have issues. I know some people whose neighbor down the road had dealt with such situation. A wacko old man barricaded an easement and started shooting at people. This is an area with people do target shooting and nobody worries.

Submitted by NotCranky on January 22, 2016 - 5:23pm.

I got serious on the phone with one of the attorney I am interviewing now. Ask him directly about quiet title. He tried to get away with just saying it's standard.
I said some people think 'churning' people's troubles is standard too. I asked him why it should be standard if I have good title. And he said he'd have to look at that. SO yeah, probably big sales job by all these guys and gals. The quiet title is a fixed cost thing so even if the guy doesn't fight title claims, and settles quickly, or doesn't even answer the claim and I win by default, they can take some additional money from me.

Going for another free consultation early next week with this same attorney and will get more into the possibility of a strong letter, served, or delivered verified contents.

I feel like we are in a pretty good place with this.

About the gun shooting practice, It does bother a lot of people, but the police won't enforce even the regulations that exist. The police won't enforce a lot of things. Short of bloodshed we don't have police protection out here, lame ducks.
The worst thing is they treat people poorly when we ask for protection. I think they do this to cover up that we can't have any.

Submitted by Hobie on January 22, 2016 - 5:58pm.

Blog: I feel you are with the wrong atty. 'Fixed cost thing' is bs.

"so even if the guy doesn't fight title claims, and settles quickly, or doesn't even answer the claim and I win by default"

This doesn't make sense. You don't and cannot gain title short of purchasing the rest of his property and you already paid for an easement on his land. There is nothing for him to settle. What do you win by default??

Time to focus. The issue is the easement not title. You paid for the right to trespass someone elses property legally through an easement. Period.

Find a real estate only attny and pay him for the letter. That's it.

Then proceed with enforcement. Photos and call cops like I already mentioned. If he brandishes a weapon, then he goes to jail. Where a GoPro when you egress.

You are not in good place with this. You don't have all the options to make decisions. He gave you bad advice and is simply trying to win you over again with another meeting next week.

Grr.

edit------------
You mentioned you have title. To what? Is your easement in the form of a grant deed? If so that is not the title you are thinking of. It's just an easement.

Submitted by bearishgurl on January 22, 2016 - 5:56pm.

Blogstar wrote:
I got serious on the phone with one of the attorney I am interviewing now. Ask him directly about quiet title. He tried to get away with just saying it's standard.
I said some people think 'churning' people's troubles is standard too. I asked him why it should be standard if I have good title. And he said he'd have to look at that. SO yeah, probably big sales job by all these guys and gals. The quiet title is a fixed cost thing so even if the guy doesn't fight title claims, and settles quickly, or doesn't even answer the claim and I win by default, they can take some additional money from me.

Going for another free consultation early next week with this same attorney and will get more into the possibility of a strong letter, served, or delivered verified contents.

I feel like we are in a pretty good place with this. . .

Russ, in order to your legal counsel to determine if you need to file a "quiet title" action, they have to take time to examine the condition of your title (and possibly any other "titles" which are germaine to your case). It is very possible that there ARE defect(s) in your title which you are not aware of.

If this attorney which you are going to meet with is willing to file a quiet title action for you for a fixed cost and that fixed cost INCLUDES a (likely) evidentiary hearing, then you need to seriously consider going that route, imho. Especially if he writes and sends the certified letter and it doesn't do any good.

Remember that as of January 2012, one cannot take an automatic default in CA in a quiet title action.

Submitted by NotCranky on January 22, 2016 - 6:05pm.

Sorry some confusion, I made the fixed cost statement not the attorney. I am just saying that they are guaranteed to make some money running the quiet title even if the defendant settles quickly on all other issues.

Could be the wrong attorney for me but all of them have suggested the quiet title in the same manner. This attorney was actually recommended by an escrow officer I have known for 20 years and is golden to me. Going to take the free consultation, but not taking a check book with me. They did say that I decide the scope , not them, so we might be able to get on track.

Submitted by Hobie on January 22, 2016 - 6:05pm.

BG: There may be problems with the title as you mentioned. But, without pulling a complete title search this attny could not even recommend a quiet title action as he does not yet have the facts. As you know, real estate law is very precise. No RE attny does fix cost cases. There is always unknown variables that take time to sort out.

Blogs issue is not one of the title. He needs a big stick.

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