Out-of-plumb building leans over boundary line

E_Page · Post by **E_Page** » Thu Dec 03, 2009 9:35 am

If the house has sttod in the same position for 80 years, it's unlikely that the owner will be forced to move it now because a neighbor who never knew there was an encroachment, and thus never perceived a problem, is now having a snit over it.

dmi · Post by **dmi** » Thu Dec 03, 2009 7:38 pm

Courts generally do no grant a prescriptive easement for an exclusive use. An easement is a non-possessory right. If my building encroaches onto your property you are excluded from any use of that property and therefore my use is exlcusive to the point of not allowing you any use of the property whatsoever and cannot really be considered an easement.
You have good advice from Page and Danner. I cannot see this going anywhere really, no attorney in their right mind would touch this case, because it is a clear loser....

bruce hall · Post by **bruce hall** » Thu Dec 03, 2009 7:58 pm

but an attorney can get paid for losing a case or winning one.

goodgps · Post by **goodgps** » Thu Dec 03, 2009 9:34 pm

Ive seen this situation go both ways.
One, the old house was allowed to remain as is . . . having stood for a long period of time. . .

two, a long standing house was literally saw cut back to the setback line.

The first case is very similar to this current situation. "a leaning building . . .caused by natural forces . . . act of God . . . is not considered a hostile acquisition of property .... this case also caused to physical harm or hinderance.

The second case was an absolute violation of setback and did cause view and safety issues.

I find it interesting that an "inch" can be found in such an unstable area as San Francisco.

mpallamary · Post by **mpallamary** » Thu Dec 03, 2009 10:43 pm

Years ago I was involved in a dispute where my client wanted to argue over a 0.05' encroachment of a fence. I kept arguing that he should drop it. He didn't and he took the complaint forward. When they got to court, the judge tore his attorney apart and sanctioned him for bringing such a frivolous complaint in front of the court when there were murderers and rapists out there and why would the judge allow the court system to be tied up in such a case. They folded their tent and quit right away and the judge hammered them.

That being said, I'll bet that the next surveyor would not get the same results, let's say he/she gets 0.02' instead of 0.04'. That is a 50 percent deviation. Try and explain that one to the court.

I say let them go to court and spend $20 - 30k over this thing. Some people only learn with a 2 x 4 to the side of the head. State your position for the record and wait until the thing falls apart.

You can lose a horse to water but you can't make him drink.

The courts also distingusih between at grade encroachments and those above grade. These can be considered a nuisance and are oftentimes treated differently.

0.04' is about the width of a stack of legal papers.

Good luck.

PLS7393 · Post by **PLS7393** » Fri Dec 04, 2009 9:02 am

This is some good reading for a Friday, lol, but then your talking about a San Franciscan.

As mentioned I love the arguments over hundredths of an inch, and the first thing I'd ask a surveyor is when was the last time he checked his equipment, you know that fish-eye bubble of high accuracies within your instrument and all of your tribrach's, don't forget your rod bubble too, cause we all know your rod is never abused, heheheee! Not to mention the errors built into the equipment or human error, (geeeeees com on peeps!).

If you need an expert witness I'd be more than happy to assist, LMAO!

Now back to our regularly scheduled Friday Humor!!!

hellsangle · Post by **hellsangle** » Fri Dec 04, 2009 9:17 am

Oh dear gawd! What a waste of monies . . . their money would be better spent on psychiatric care and loads of meds! Or a simple pin prick to deflate their egos! . . . must have more money and ego than brains and common sense.

Ian Wilson · Post by **Ian Wilson** » Fri Dec 04, 2009 1:15 pm

Not to throw gas on the fire, but...

...easements in California MAY be exclusive, now. Read Blackmore v. Powel (Blackmore v. Powell, 59 Cal.Rptr.3d 527, 150 Cal.App.4th 1593).

.

Propst · Post by **Propst** » Fri Dec 04, 2009 2:14 pm

The court distinguished an easement by Deed from one by "Prescription"

Quote:
Appellants contend that the right to exclusive control over the garage is
necessarily inconsistent with the grant of an easement. They rely on Harrison v.
Welch (2004) 116 Cal.App.4th 1084, Kapner v. Meadowlark Ranch Assn. (2004)
116 Cal.App.4th 1182, Mehdizadeh v. Mincer, supra, 46 Cal.App.4th 1296, Silacci
v. Abramson (1996) 45 Cal.App.4th 558, 562-564, Mesnick v. Caton (1986) 183
Cal.App.3d 1248, 1260-1262, and Raab v. Casper, supra, 51 Cal.App.3d at
pp. 876-878. As we explain below, these cases address the acquisition of an
exclusive easement by prescription, and thus are factually distinguishable.
. . . .
Unlike these cases, respondentâ€™s claim of an easement arises not
from his conduct, but from the 1979 grant deed, which expressly accords him
rights short of fee ownership.
End quote

mpallamary · Post by **mpallamary** » Fri Dec 04, 2009 11:33 pm

I agree with Keith about bubbles and all things that go bump in the night. A reading up the side of the building is more probability of error then a level reading. If the gun is out of plumb at a height of five feet, and say a hundredth, at twenty feet, tilted up, that could mean four hundredths.

Any sane judge would throw this one out.

bruce hall · Post by **bruce hall** » Sat Dec 05, 2009 9:22 am

a direct-face right-and then taking a reverse-face left-reading or observation of the wall 20 feet up, and then meaning or averaging the values, one could get a pretty good idea of where the building face was in relation to the line in question, as long as the line is in the correct place.

Whenever someone is trying to "get somebody" for a quarter or a half an inch, that can be a pretty tough call. With all the talk of tribrachs and plumbing poles, probably the most accurate way to get line is with a plumbob string, and the best way to set up over a point is with a plumb bob hung from the transit/edm. Then there is not plumbing pole bubble problem, nor is there a tribrach problem. Don't retire that Berger or K and E just yet. And hope that the observations don't take place on a windy day.

land butcher · Post by **land butcher** » Sat Dec 05, 2009 4:28 pm

I used a columnator to run a building up once, those are amazingly accurate esp since you can rotate it 360* to read the tape from any quadrant.
So a 80yo bldg in SF is out of plumb 0.11ft, and is SUPPOSED to be encroaching 0.04ft. In 80 years I would not trust any points establishing the boundary within that tolerance when compared to the control used 80 years ago unless the original mons are in place and undisturbed.

I agree with Hellsangle - shoot them and end the gene pool now.

Personally, I would not want to be the surveyor on this.

Lee Hixson · Post by **Lee Hixson** » Sun Dec 06, 2009 7:24 am

land butcher wrote:..... In 80 years I would not trust any points establishing the boundary within that tolerance when compared to the control used 80 years ago unless the original mons are in place and undisturbed.....

Best point made so far.

There comes a time when the gravity of the outcome exceeds the reliability of the effort.

Dave Lindell · Post by **Dave Lindell** » Mon Dec 07, 2009 12:22 pm

What's a "columnator"?

goodgps · Post by **goodgps** » Mon Dec 07, 2009 7:26 pm

A column Ator is a very hungry roach that feasts on buildings ?????

subman · Post by **subman** » Mon Dec 07, 2009 8:33 pm

I am sure the encroachment can somehow be blamed on global warming and green house gas...

By the way, what color is the house? Green? ;-)

dmi · Post by **dmi** » Thu Dec 10, 2009 8:43 pm

This is a case ,in part, points to the importance of local knowledge. There was a local case in court where one surveyor laid out according to the deed and another laid out according to occupation.The occupation surveyor lost in that case.

Ben Lund · Post by **Ben Lund** » Fri Dec 11, 2009 1:52 pm

Do construction tolerances allow for this small of an "encroachment?"

Assuming the building was designed to be right on PL (0.00' setback), even if you found the original monuments, and there was indeed a measurable encroachment, who’s to say it wasn’t because of:
1. Construction tolerances
2. Differential soil settlement
3. Heaving of construction material
4. Bowing of construction material

goodgps · Post by **goodgps** » Fri Dec 11, 2009 6:34 pm

yeah,
Along these lines, I've got people is a nearby town, fighting over 3" on a fenceline.

I'm charging them dearly for a record of survey to solve the dispute.

The charges must be very high, because if these people will fight over this, it will certainly go to court.

Does this Country need another 9-1-1 to come back to reality ?

but then again, as long as there is hatred, WE will have survey jobs to do.

"This land is my land . . . and its not you're land . . . if you don't get off . . . I'll blow your head off . . . ." this land was made for ME" !!!!!

Sing it Woody !!!!

Happy holiday season to everyone !!!!

California Surveyors Forums

Out-of-plumb building leans over boundary line

No, generally

It might be a clear loser

big egos

In the Blackmore case there was a deeded easement

I would think that taking

importance of local knowledge