If you are having a boundary or property line dispute, or are frustrated and unable to resolve a fence or easement issue with your neighbor, then it is time to enlist the services of attorney David R. Fischer to help you resolve your issue. Not all neighbor disputes involving real property are about property lines, and that is why we are here to help you with access rights, encroachment solutions, encroachment litigation, trespass lawsuits as well as road maintenance for jointly-owned road easements and road association issues.
Whether you have found that your neighbor's fence, gate or retaining wall is on your property or your neighbor is claiming that your driveway or landscaping is on his property (or vice-versa) chances are you will need prompt legal representation to work out the dispute. If your neighbor is encroaching on your property there could be a statute of limitations and failure to act could lead to the loss of some or all of your rights.
Most frequently, boundary line disputes arise from the failure to obtain a survey prior to a property purchase or the building of improvements. Sometimes the dispute is over differences in surveys. Despite surveying instruments becoming more precise in recent years, boundary disputes between neighbors are still common. A good number of boundary disputes are caused by different surveyors who measure the same line from different directions. For example, in surveying the east-west running line of a property, one surveyor may measure from the east, and another surveyor may measure from the west, producing a gap or overlap between the two surveys. Ambiguous descriptions in old deeds can also cause modern-day property line disputes. For example, an old deed may refer to a tree, fence post or other monument that has long since been removed, causing subsequent surveys to become misaligned, which leads to a boundary dispute.
As a former party chief in a survey crew, David R. Fischer brings an experienced eye when it comes to reviewing surveys and legal descriptions, in addition to years of experience with boundary line disputes.
An easement is a legal right to use another’s land for a specific purpose. Neighbor disputes over easements arise when parties cannot agree on how the easement is be used. The Law Office of David R. Fischer has handled many matters involving disputes between the easement owner (called the “dominant tenement”) and the owner of the land over which the easement runs (called the “servient tenement”).
To resolve your dispute we can review your property's chain of title, analyze any recorded easements on your property, work with your land surveyor, and negotiate with your neighbor on your behalf. If easement documents are not properly drafted it can lead to litigation later on, so when we draft an easement, we try to anticipate issues that may arise in the future. Years of experience with easement disputes has given us the knowledge of which issues are likely to lead to future disputes if not properly addressed in the original documents.
When negotiations fail, we are prepared to go to court on your behalf.
A dispute with a neighbor over access rights can arise for a variety of reasons, for example if your property is "land-locked" with no deeded access directly from a public road. We will work with experts to try to find old documents, or uncover facts, that can show how land-locked parcels were accessed in the past, and use these documents and facts to obtain access today.
If a public street leading to your property is vacated by the city or county the resulting loss of direct access can be detrimental to the value of your property. We can represent you in seeking to keep the street open.
Our office prides itself on its breadth of knowledge in the narrow area of dock, pier and wharf rights, water boundaries, and littoral rights. In fact, the published court case on these issues, Kendall v. Walker (2009) 181 Cal.App.4th 584, is a case that our firm successfully prosecuted on behalf of a client who had a neighbor dispute over land that fronted on a waterway.
Littoral rights involve waterways, such as the ocean, lakes, rivers, streams, sloughs, and canals. Although littoral rights involve a whole list of rights from access to fishing, the most frequently disputed issue involves access to the water. Waterway rights belong to the owner of land that fronts the waterway, and the right to build a dock, pier or wharf on waterfront property is one of the recognized littoral rights that belong to a property. Water boundary disputes most often involve how to project an upland property's boundary lines into an adjacent waterway, for the purpose of determining where a dock, pier or wharf can be built.
We have also represented clients in disputes involving the regulatory powers and permit process of the United States Army Corps of Engineers.
Encroachment disputes arise between neighbors when it is discovered that the improvements from one property encroach over the property line onto the adjacent lot. Encroachment cases often are resolved without litigation by creating an easement and/or performing a lot line adjustment to move the boundary line so that each owners' improvements are on that owner's respective lot.
In general terms, a trespass occurs when someone enters the land of another without the owner's permission. Trespass issues can arise in many different situations. Trespass can be intentional, reckless or negligent. Entry can be on, above, or below the surface of the land, and may even occur indirectly. For example, heavy construction on adjacent property which causes vibrations that damage your land, structures, or other improvements can bring about a claim of trespass.
In regard to easements, when the owner of an easement uses land outside the boundaries of the easement, or starts using the easement for purposes that are not allowed by the terms of the easement, a claim for trespass can arise. Such an example would be when an easement owner places an object on the easement that is not allowed by the easement's terms. We have brought trespass claims on behalf of clients, as well as defended trespass claims that have been brought against our clients.
When a road is shared by two or more property owners, a Road Maintenance Agreement is a good way to decide in advance: (1) when, and to what extent, maintenance will be performed on the road; and (2) who will pay for the maintenance and in what proportion. In order to be binding upon future owners of the parties, Road Maintenance Agreements are typically recorded with the County Recorder. There are many formulas that can be inserted into a Road Maintenance Agreement to determine how to divide-up the maintenance costs, including formulas that take into account the intensity of the uses of the parcels (commercial, residential, vacant), and the physical length of the use by a particular parcel compared with the overall length of the road. We have drafted many of these agreements over the years, and tailor them to the particular road involved. We have also represented clients in litigation concerning Road Maintenance Agreements.
Some roads are maintained by an association created for that purpose. Usually a Road Association is created by a Road Maintenance Agreement. Our firm has assisted several Road Associations in amending their agreements, levying assessments, obtaining insurance, and negotiating contracts with contractors.