HOME INSPECTIONS Category
WATCH OUT FOR LANDLOCKED PROPERTIES!
HOME INSPECTIONS, REAL ESTATE PRACTICE, TIPS FOR BUYERS, TIPS FOR SELLERS
Back in the old days, people didn’t worry too much about easements and access roads or crossing land owned by someone else. Today, buyers and sellers are much more aware of issues surrounding ingress and egress and how it impacts the value or desirability of a particular property. A landlocked property is one that is completely surrounded by private property belonging to others so that it may not be accessed without crossing land owned by another.
A landlocked property owner may gain access to their land by:
An owner may purchase a neighboring land (fee title) or a portion of it, purchase or be given a license for the right to use a neighbor’s property (usually revocable) or purchase an easement across an adjacent property. It’s important to understand an easement merely acquires the right to use the land of another while a fee title purchase acquires the underlying land.
Fee title is best, an easement second best and a license is the weakest right for access purposes. Easements usually run with the land but a license is not transferable. In order for a deeded easement to be enforceable it must be in writing, contain the names of the grantor and grantee, define the purpose or proposed use of the easement and describe the location of the easement with sufficient certainty. A contract can also be used to create an easement.
Licenses can be created by a written document or oral agreement or by conduct. A license is not an interest in land so it does not need to be in writing. Both easements and licenses should be carefully drafted by legal counsel and consultation with a title insurance company. Easements will not bind subsequent owners unless it is recorded as “a covenant that runs with the land”.
An easement by prescription may be created when a person uses the land of another “continuously” for at least five years “without consent in an open and notorious manner”. In order for a prescriptive easement to be enforceable, the owner of the landlocked property will need to obtain either a court order through a quiet title action or a document from the landowner burdened by the easement. The owner of the landlocked land will have to prove in court:
- That he/she used a right of way across the adjoining property for ingress and egress.
- The right of way use was continuous and uninterrupted.
- The use was hostile or adverse to the rights of the owner.
- The use of the right of way was under a “claim of right” (either with the belief that the property actually belongs to the owner of the landlocked property, or with the intent to use it regardless of the property rights of the true owner). If the owner gives permission to use the access, this will defeat the action to perfect the easement.
- The use of the property for a period of five years. Use by preceding owners will be counted toward the 5 year minimum.
Adverse possession differs from prescriptive easements in that adverse possession delivers fee title to the landlocked owner while a prescriptive easement is just that, an easement. In addition to the above requirements, the possessor seeking adverse possession must also pay property taxes for the portion of land used for a period of five years and prove “exclusive use” .
Stopping a landlocked property owner from acquiring a prescriptive easement can be accomplished through several actions:
- Construct barriers or seek an injunction by filing a lawsuit.
- Record a notice in the county recorder’s office which states any use by the public or any person whatsoever is by permission, and subject to control of owner.
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Post a sign at each entrance and every 200′ stating “Right to pass by permission and subject to control, of owner: Section 1008, Civil Code.”
An easement by implication can be created if the following conditions are met:
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Common ownership at some point in the past of a parcel and a transfer of a portion of the parcel to another person (separation of title).
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Before the division of title, the use giving rise to the easement must have been so lengthy and obvious as to show it was intended to be permanent.
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The easement must be reasonably necessary to the use and enjoyment of the land granted.
An easement by necessity can be forced by a court if all the following requirements are met:
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Both properties were under common ownership when the land was divided and the easement was created.
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A relationship of grantor and grantee “existed” between the owner of the landlocked property and the property over which the easement is sought.
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“Strict necessity” for the right of way must exist.
Landlocked properties usually are unbuildable according to local building laws. Review the title carefully of any property that is served by a private road or lacks an access road. Title officers are usually helpful explaining access issues so ask lots of questions before committing to buy a property with limited or restricted access. It is very important to have a real estate professional guide you through the title review process. If you have a question about this or any real estate matter, feel free to contact me:
530-224-6767 or 530-941-7492
BRAD GARBUTT
REALTOR/BROKER
REAL ESTATE PROFESSIONALS GMAC
TWENTY FIVE YEARS LOCAL REAL ESTATE EXPERIENCE
BUYING A HOME-CALIFORNIA STYLE!
HOME INSPECTIONS, REAL ESTATE PRACTICE, SHASTA COUNTY, TIPS FOR BUYERS
Whether buying your first home, or selling a home you’ve owned for a decade or more, most clients are unfamiliar with today’s contracts used by REALTORS. I would like to point out several important changes that significantly changed the process for buyers and sellers utilizing a standard California Association or Realtors’ (C.A.R.) purchase agreement.
Years ago sellers warranted most aspects of the property including the roof, appliances, electrical and mechanical, even the structural integrity of the chimney! However, the California State Constitution clearly states all real property sales are without warranty from the seller. “As is” is the phraseology commonly used. The Residential Purchase Agreement (RPA) used by most REALTORS, uses the term “present physical condition” to describe the property condition to be transferred. The seller is obligated to remove all personal property and dispose of any debris. Cleaning and carpet shampooing are not standard provisions in the RPA but sellers typically deliver the resale home to the buyer in good overall condition.
Since the buyer is required to buy the property “as is”, the buyer is given an opportunity to investigate all aspects of the property during the due diligence period. Five contingencies are standard in the RPA to protect the buyer. The sale is conditioned upon the buyer’s approval of the following:
- Financing-The buyer and property must qualify and be approved for a loan of the buyer’s choice.
- Appraisal-The property must appraise for at least the purchase price or the buyer does not have to purchase the property. Cash buyers can waive these first two contingencies, if desired.
- Title-The buyer is allowed an opportunity to review the Preliminary Title Report including C,C,&R’s, if any. Buyers are well advised to review the report with the title officer that prepared the report and their real estate professional.
- Inspections-The buyer can investigate any aspect of the property, at their own expense, and cancel the contract if anything is found to be unacceptable. Most buyers will negotiate with the seller in good faith to resolve any deficiencies before deciding to cancel the transaction.
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Disclosures-There are many statutorily required disclosures the seller must complete and provide to the buyer, as well as several optional ones. One additional contingency may be added to the contract by the buyer if the sale is to be conditioned upon the sale of the buyer’s property. This is a major one, so sellers should discuss and consider this contingency carefully with their agent before signing on the dotted line.
The RPA requires these contingencies be removed in writing, by the buyer, within a specified time period, usually 17 days from date the contract is accepted. Older contracts specified these contingencies would automatically vanish once the specified time period had lapsed, even if the buyer was not ready. This “passive method” of contingency removal has been replaced by the “active method” meaning the specific contingencies must be removed in writing. If the buyers refuse to remove the contingencies in a timely fashion, they continue until either the escrow closes or the sellers demand the buyer sign a form specifying all contingencies to be removed. The buyers’ deposit is fully refundable unless all contingencies have been removed in writing.
It is important that the agent you hire to represent you in a real estate transaction knows the mechanics of the real estate contract in order to protect your rights and explain your obligations. Please don’t hesitate to contact me if you have questions regarding this or any real estate matter.
530-224-6767 or 530-941-7492
BRAD GARBUTT
REALTOR/BROKER
REAL ESTATE PROFESSIONALS GMAC
TWENTY FIVE YEARS LOCAL EXPERIENCE
SHOULD A BRAND NEW HOME BE INSPECTED?
HOME INSPECTIONS, TIPS FOR SENIORS
August 4, 2008
Frequently this question comes up while reviewing with my clients what inspections should be conducted during the due diligence period after an offer is accepted. When I answer my client’s question with an emphatic yes, sometimes they are surprised and ask “why”? After all, doesn’t the building department inspect a home at various times during construction? Yes they do, but city and county building inspectors are the first to admit they miss things. Over the years I have found new construction has as many or more findings than resale homes. Why? The new home has not been test driven so to speak. Resale homes have had the bugs worked out of them and typically only have issues regarding maintenance or improper modifications made by the owner.
This last week, I had the opportunity to have a new home inspected and everyone in attendance learned something. My buyers were present and were glad they took my advice and had a competent property inspector review the finished home. Several significant issues were discovered. First, modern shower valves have a safety feature to prevent scalding. This device was adjusted such that the water temperature in the stall shower could not exceed 87 degrees. Hardly a comfortable temperature unless you like cold showers! A simple adjustment will correct this problem. Next it was discovered arc fault interrupter circuits were not installed in the main breaker panel. Required in homes built after 2004, these special breakers prevent a fire if you accidentally put a nail through an electrical wire while hanging a picture. Newer more expensive versions provide additional protection if the appliance you are using has a short. These are not to be confused with GFIC breakers which have been code for decades. Another problem was the location of the electrical outlets in the garage. They were 14″ above the garage floor and code requires them to be no less than 18″ high. Another problem was the garage door opener. Although the electric eyes were in place and working properly, the reverse safety feature that stops the door when it hits something was improperly set. A minor adjustment to the sensitivity screw would cause the door to reverse when it strikes something (such as the bumper of your car). The contractor was surprised the picky city inspector didn’t catch these items and planned to make the necessary repairs/adjustments.
Here’s a list of things commonly called out by inspectors of new homes:
- Gutters full of construction debris.
- Vent pipes on roof not properly sealed.
- GFIC circuit not installed to protect exterior outlets.
- Insulation blown into condensation pan of attic-installed HVAC unit.
- Condensation lines for HVAC not connected properly.
- Tile grout missing or broken.
- Electric eyes for garage door opener installed too high from floor.
- Dishwasher drain pipe installed without anti-siphon device.
- Circuit breakers not labeled.
- Insulation in attic uneven or missing.
Besides finding problems that could impact the comfort and safety of your new home, this is the only time you can be reasonably certain the builder will correct all deficiencies since California requires builders to provide a 1-year warranty that covers virtually every aspect of a new home. It is also much easier to get things fixed before the sale closes escrow. The home is vacant and the builder knows the buyer is unlikely to close escrow until everything is corrected.
I have sold new homes built by many Redding/Shasta County contractors. If I can be of further assistance or answer specific questions don’t hesitate to call, blog or email me at 530-941-7492 or 530-224-6767.
Brad Garbutt
REALTOR/BROKER
Real Estate Professionals GMAC
25 YEARS LOCAL REAL ESTATE EXPERIENCE
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