• Land Use Attorney Capitola

Case Update: Laguna Hills HOA Prevails Against Homeowner’s Intentional Encroachment Into Common Area.

In Nellie Gail Ranch Owners Association v. McMullin, (2016) 4 Cal.App.5th 982, the court of appeal affirmed a trial court ruling quieting title to a portion of planned development’s common area in favor of a homeowners association (HOA) in Laguna Hills.  In this case, a homeowner sought the HOA’s approval to construct several backyard improvements, including renovations to a pool, and new stairways, retaining walls and fences that dropped down the owner’s hillside towards HOA common area (Lot 274).  The HOA approved the pool renovations, but not the owner’s proposed re-grading, retaining walls and fences.  However, the owner’s constructed those improvements anyway, which had the effect of fencing in 6,000 SF of the common area, and the HOA sued.

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CASE UPDATE: Court Holds That Public Recreational Use Exception Did Not Apply As A Defense To A Private Prescriptive Easement.

In Pulido v. Pereira, (2015) 234 Cal.App.4th 1246, the court of appeal upheld the trial court’s determination that a prescriptive easement existed and that the public recreation exception (Civ. Code § 1009), did not apply.  Pulido purchased some undeveloped property in Calaveras County.  For six years, the Pulido always accessed the property via a road called Quartz Hill Drive (which was a private road owned by Pereira), by disconnecting a chain strung between two posts at the entrance to the road.  One day, Pereira installed a gate and lock across the road entrance and told Pulido that he could no longer use the road.  Unfortunately, locking the gate affected several other neighbors who also used the road to access their properties, and the neighbors sued.  The trial court held that the neighbors had a prescriptive easement, satisfying the elements that the use of the property was open, notorious, continuous and adverse for an uninterrupted period of five years.

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CASE UPDATE: Court Rejects “Equitable Easement” Claim

Court rejects property owner’s claim that he had an “Equitable Easement” to use an improved patio area on his neighbor’s property and remanded the case back to the trial court to adjudicate the plaintiff’s prescriptive easement claim.

In Shoen v. Zacarias, (2015) 237 Cal.App.4th 16, the court of appeal overturned the trial court and rejected plaintiff’s claim that she had an “equitable easement” to use a patio area on her neighbor’s property that was only accessible from the plaintiff’s property.   The equitable easement doctrine evolved to give courts discretion to balance hardships in neighbor disputes over the use of property, and it can be used when a party cannot satisfy all the elements for an actual or prescriptive easement.  The court summarized the current rule as follows:

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CASE UPDATE: When The Language Of An Easement Is General The Extent Of Its Use Is Established By Past Use.

The case of Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (3rd Dist. 2013) 2013 WL 6578784, –Cal.Rptr.3d–, involved a fairly common dispute about the extent of an easement.

A garbage company had an easement, created by reservation in a deed, to use a certain parcel for “parking, ingress, egress, utilities and storage” related to its business. The subject parcel contained a paved area and an unpaved area, and the garbage company used the paved area.

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Who Is Responsible When Uphill Stormwater Causes Downhill Damage?

Introduction

Stormwater issues are not new to residents of hillside and mountain areas. Because winter storms often bring voluminous amounts of rain, sometimes for weeks on end, it is important to know how and where all that stormwater is flowing through your property in order to protect structures from damage and to protect the land from erosion. Sometimes stormwater needs to be collected, concentrated and discharged elsewhere through pipes or culverts, especially following new construction or the creation of impermeable surfaces (like roads and driveways).

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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