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5 Things to Consider Before Building a Pool


Simon Offord

by Simon Offord on July 31, 2015

in Real Estate Law

As the heat of the summer continues across California, and temperatures start to creep into the triple digits, having a pool around sounds like a pretty swell option. In the privacy of your own property, you can take a dip to cool off from the sweltering heat, or lay out next to the pool and catch some rays. For those who are considering installing an in-ground pool on your property, however, there are some important real estate law-related things that you should keep in mind.

Here are 5 law-related things you should consider before installing a pool on your property:

 1. What do the local municipal codes and state requirements say?

Municipal Codes may have very specific requirements about constructing a pool, size, type, set-back requirements, etc.  Make sure your contractor understands with and complies with these rules.

2. Safety issues

Pools can be hazardous to children and adults alike.  Is a fence around the pool necessary or required by the local laws?  Does your insurance cover injuries that may occur in or around the pool?  Be sure you have reviewed and considered these issues before proceeding.

3. HOA Restrictions

Does your homeowner’s association have any specific rules regarding pools?  Are they even permitted?  If so, are there size or other restrictions/limitations?  Even if the City allows the pool, the last thing you need is a dispute with the HOA about the pool.

4. Easements and Space Restrictions

Do you have sufficient space to install a pool?  Are there any utility or other easements in your yard that prevent you from having a pool?  Are trees in the vicinity and will the pool impact (or be impacted by) tree roots?  A surveyor or arborist may be needed to analyze this issues for you, so do so early in the process.

5. Tax Implications

Will adding a pool constitute new construction that will impact your property taxes?  How much value does the pool add and how much higher may your taxes become?

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The recent case of Shoen v. Zacarias further analyzed the equitable easement concept and what is required by a trespasser to obtain one.

In Shoen, the Zacariases (hereinafter “Trespassers”) were innocently trespassing on a patch of land owned by the Shoens (hereinafter “Owners”).  The patch of land was about 500 square feet and included the Trespassers’ patio furniture.  The Owners sued Trespassers for trespass, nuisance and ejectment.  The Trespassers raised an affirmative defense of relief by way of an equitable easement, arguing that they were entitled to an equitable easement due to their use of the Owners’ land.  The Trial Court therefore had to determine whether the Trespassers had established the elements of equitable easement (notably innocent use, whether Owners would suffer irreparable injury, and a balancing of the equities)

After an 8 day trial, the Trial Court granted the Trespassers an exclusive, 15–year equitable easement over the patch of land contingent upon payment of $5,000 to the Owners.  The Trial Court found that Trespassers’ initial occupation of the patch was innocent; that the Owners would not suffer irreparable injury if the Trespassers were allowed to keep using the patch; and that the balance of equities favored Trespassers.  With respect to the balance of equities, the court found that the Owners were unlikely to be harmed by the Trespassers’ exclusive use of the patch because it would cost the Owners at least $100,000 to build a staircase that accesses the patch, and because the Owners “had adequate other space to enjoy their property.”  On the other side of the balance, the court found the hardship to the Trespassers to be greater because it would cost them $275 to remove patio furniture; the staircase would then lead to a patch that could not be effectively used; and the Owners’ intention to build a wall on its property would minimize the Trespassers’ view and reduce natural light.

THE DECISION

The Appellate Court overturned the Trial Court’s decision.  The Appellate Court re-emphasized the fact that in order for a trespasser to gain rights under an equitable easement theory, he or she must prove that they are “irreparably injured” and the hardship to the trespasser is “greatly disproportionate” to the hardship to the true owner for the continuance of the encroachment. The Court went on to emphasize that the equitable easement doctrine’s alternative title, “balancing of the conveniences,” is misleading as the doctrine does not require a mere favoring of the hardships as to the trespasser, but instead a disproportionate tip in favor of the trespasser

The Appellate Court noted that equitable easements are contrary to the constitutional prohibition against taking of private property, thus requiring an “abundance of caution” when granting one, and to resolve all disputes against the issuance of an easement.  Moreover, the Court noted that equitable easements are appropriate when permanent, physical encroachments exist, or for intermittent trespasses in order to access landlocked property, neither of which was present in this matter.

The Court held that removing patio furniture and losing the benefit of the use of unimproved land “[fell] short of the imposition of a substantial hardship”. The Appellate Court was not swayed by the fact that the Owner was still able to use other parts of her land, or that the Trespassers would lose their view or otherwise shrink the usefulness of other parts of their land.

WHY THIS DECISION IS IMPORTANT

Shoen makes clear that the loss of an encroachment that does not require the removal of physical improvements, but is instead a mere inconvenience or against the trespasser’s desires, is not sufficient to allow for an equitable easement.  This case provides some further guidance to practitioners and reaffirms that the trespasser must have some significant injury in order to obtain an interest in land when the other easement-related theories (such as prescriptive easement, easement by necessity, or adverse possession) fail.

COMMENT

The equitable easement landscape continues to develop.  Although this case does provide some additional guidance, the bottom line is that these cases are at the whim of the trial judge, making them incredibly unpredictable.  What one judge considers “greatly disproportionate” can vary significantly, leaving the attorneys and parties in somewhat of a guessing game.

Shoen v. Zacarias (2015) 237 Cal.App. 4th 16

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In 2005, Afsheen and Fabiola Alborzian (“Alborzians”) obtained two loans to purchase a residential property.  The first lienholder was Wells Fargo and the second lienholder was JPMorgan Chase Bank (“Chase”).  Eventually, after the Alborzians defaulted on their loans, Well Fargo foreclosed.  A year after the foreclosure, Chase sent a letter to the Alborzians attempting to collect on the second loan.  In the letter, Chase stated that $67,000 was owed, that Chase would be willing to accept a payment of $16,000 to resolve the outstanding balance if it was paid within a short deadline.  If there was no resolution, Chase stated that the Alborzians would have “fewer options”.  Finally, Chase included a sentence stating that it was not “an attempt to collect a debt or to impose personal liability … [t]o the extent [plaintiffs’] obligation was discharged.”  In addition to the call, Chase called the Alborzians to attempt to collect on the loan.

In response, the Alborzians sued Chase for violations of the debt collection acts.  They argued that because the second loan was a purchase money loan that was wiped out by the senior loan, the anti-deficiency statute prevented any further liability.  Without any personal liability, Chase’s attempts to collect were deceptive. After several motions, the trial court eventually ruled against the Alborzians and granted Chase’s demurrer by finding that the Alborzians failed to state a claim.

THE DECISION:

The Second Appellate District overturned the trial court’s decision and found that Chase could be liable under the debt collection acts.  In Afshee Alborzian v. JPMorgan Chase Bank, N.A., the appellate court held that Chase’s statements were deceptive and could have reasonably misled the Alborzians to believe that they were personally liable.  The Court noted that the standard regarding collection cases is the “least sophisticated debtor.”  Here, although Chase included a sentence stating they were not attempting to collect a debt if the debt was unenforceable, the remainder of the letter was clearly intended to persuade the debtor to believe a debt was owed and enforceable.  As the law presumes that the consumer is “below average sophistication or intelligence”, it is reasonable to assume that the consumer would not be aware that California’s anti-deficiency statutes barred any further liability.  Due to the fact that there could have been some deception or misrepresentation, the appellate court allowed the Alborzians to attempt to prove their case at the trial court level.

WHY THIS DECISION IS IMPORTANT:

Many debt collectors have attempted to avoid liability by including a phrase that the borrower should seek counsel to determine whether they actually owed a debt.  However, the court here has found that this language is insufficient as the majority of the letter is still misleading.  With this ruling, many debt collectors will need to perform their due diligence to determine whether a debt is enforceable before attempting to collect a debt.  Further, while previous case law had allowed debt collectors to attempt to persuade borrowers to voluntarily make payment on unenforceable debt, the potential liability may prevent debt collectors from even making the first contact.

COMMENT:

In ruling on this case, the Court honed in on the crux of the problem – Chase, and other debt collectors, are impermissibly misleading consumers about the debt they owed.  While debt collectors have attempted to avoid liability by writing in fine print, this language is simply insufficient as the entire point of the communication is to make borrowers believe they still owe money.  The Court noted that Chase could have prevented this issue by stating that it was “merely seeking voluntary repayment of its unenforceable debt.”  Obviously, as the court continues to state, this would severely undermine the likelihood of any consumer making a payment to Chase.  With this ruling, it seems unlikely to be worth the cost and potential liability to attempt to collect on these debts.

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We have written several articles about a seller’s duty to disclose, including articles about the consequences of failure to disclose material facts. Most of these articles discuss physical defects, as these are the issues that most often result in lawsuits. However, a seller’s duty does not end there. ANY fact materially impacting the value of property must be disclosed.

A recent sale in New Jersey has been all over the news, with the buyers suggesting they will sue the sellers for failure to disclose. Many of you may have heard about it, as it is a creepy yet fascinating story.

Shortly after moving into their new home, a New Jersey family began receiving terrifying threats from someone identifying themselves as “The Watcher.” Specifics on the threats can be found here.

The threats were so bad that the buyers moved out. Understandable, as I would not want anything to do with these threats. The buyers now want to sue the sellers, claiming the sellers knew about the threats.

This would certainly be actionable in California. If the buyers could prove the sellers received similar letters or generally knew about this individual, this fact should have been disclosed. Disclosure duties are not limited to physical defects. Issues such as noisy neighbors, traffic, deaths at the property, and “The Watcher” do need to be disclosed. Put yourself in the buyer’s shoes, would those issues impact the value of the property to you?

If you are selling property and wonder if you should be disclosing something, the fact that you are wondering about it suggests it is significant to you, and thus should be disclosed.

If you have questions about disclosure duties, or real estate law in general, do not hesitate to contact us.

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Usually when we write about neighbor disputes, we discuss boundary disputes, a misplaced fence, or property rights gained or lost through adverse possession or easements.  In our previous article, we discussed Adverse Possession, Prescriptive Easements and Equitable Easements, with a brief description of the elements required to establish those claims. A review of those types of claims reveals they are heavily fact-based and can be difficult for the claimant to prevail.

However in a rare case this year, California courts gave a neighbor an “irrevocable parol license” over someone else’s property, a type of grant that we have never seen before.

In Marin County, two neighbors got into a dispute over a 30 foot wide easement down a 150 foot long road.  With property values being what they are in Northern California, this was a pretty costly strip of property.

The Poksays built their house in Novato in 1989.  Their driveway was constructed pursuant to an easement over 2515 Laguna Vista Drive, which was owned by the Schaefers.  The Schaefers had granted the Poksays an easement for access and utility purposes only.  Typically, that means ingress, egress, power lines and water.  However, the Poksays ended up improving this large easement with significant plantings, irrigation and electrical lighting.  Over a decade later, the Poksays sold the Property to the Donettis who then added further vegetation.  In 2004, the Francs purchased the Schaefer’s property which was subject to this easement in favor of the Donettis.  After 6 years of apparent neighborly tranquility, the Francs cut the power and irrigation lines, dismantled the water pumps, and sent a demand letter for the Donettis to remove all the landscaping.

In response, the Donettis sought an injunction, which was granted, to restore the irrigation system.  Further the Donettis sought the ultimate relief of an irrevocable parol license not only for themselves, but also for their successors in interest to maintain and improve the landscaping, irrigation and lighting within the easement.

The Donettis won and the Francs appealed.

On appeal, the Appellate court affirmed the lower court’s decision and gave its rationale, finding that it would be inequitable to terminate the permissive use that the Donettis had enjoyed and concluding the Donettis had an “irrevocable parol license” to maintain and improve the landscaping.

[Richardson v. Franc, 233 Cal. App. 4th 744 (2015)]

HERE’S WHY THIS CASE IS IMPORTANT: Licenses are usually revocable, so they have some duration at which they will end.  This license was irrevocable and was granted not only to the present owners, but also to their successor-in-interest.  That means that when the Donettis sell or transfer their property, the license is also tranferable to the new owner.  This is akin to a permanent right that runs with the land, the way an easement does.

This case only further muddies the waters and makes evaluation of each respective neighbor’s rights difficult.  The law was already scattered on boundary disputes, with findings swinging in either direction depending on the sympathies to the parties.  Hopefully, the Supreme Court will take a look at this issue and provide definitive clarity, especially with regard to rights that seem so permanent in nature, contrary to what a “license” is intended.

COMMENT: Why were the Donettis entitled to such a big win?  Neighbor disputes fundamentally come down to fairness and balancing the equities.  Here, the courts concluded that the fee simple owner of the land (the “servient tenement”) was benefitting from letting the easement holder (the “dominant tenement”) do all the work and pay for all the decades of landscaping and water bills.  The opinion had a pretty lengthy description of the many different varieties of plantings and the way the mature landscaping enhanced the visual appeal (and hence property value) of the property.  The license is for landscaping which now begs the question, what if the Donettis or the successors one day stop paying the water bill, the gardeners and let it all go to seed?  Could the Francs compel the Donettis to maintain the property? Could the Francs seek a termination of the license at that juncture?

If you need legal help with regards to neighbor disputes, boundary disputes, or easements, you can contact our firm here.

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“I do not want them in the house, I do not want them on my blouse, I would not like them in my car, I would not like them near or far, I do not want them here, nor there, I do not want them anywhere!”  With great apologies to Dr. Seuss.

Yesterday, a Maryland couple filed a $2 million lawsuit against their REALTOR® after they found a severe snake infestation in their recently-purchased home.

Sellers in California are required to disclose all facts that would be material to the transaction.  A snake infestation would be material to most, if not all buyers.  In this case, if there was an inspection report disclosing the defect that the seller or the listing agent had possession of, then the buyers may have a solid claim for punitive damages because of active concealment.

California law requires you to fill out and provide the Transfer Disclosure Statement. In addition to the TDS, many buyers would like the Seller’s Supplemental Checklist, however it is optional. I recommend that sellers use the supplemental disclosure to help them remember what repairs and property conditions that they should disclose to the buyer. After so many years of owning a home, it’s easy to forget all the little repairs you have made. Remember, you must disclose anything that would be material to the buyers.

For example, if the window leaked this past winter and you repaired it in the summer but it hasn’t rained yet, you don’t know if it still leaks. Sellers often forget to disclose things they “fixed” which can lead to problems later.

That’s what appeared to have happened to these unfortunate buyers in Maryland, that they purchased their home when snakes were dormant (presumably during cold weather) but “as the weather grew warmer, the family discovered the snake infestations”.

Here in the Bay Area, we haven’t had much rain since there has been a drought and so a property that looks dry as a bone in the summer months could have a serious drainage or flooding issue when the rains resume.  If the sellers are aware of that possibility, they must disclose it.

We have written about the seller’s duty to disclose numerous times:

“Past Litigation is a Material Fact that Sellers are Obligated to Disclose”

http://www.brewerfirm.com/articles/article-052709b.html

Do I have to Tell Them Everything? By Simon Offord, Esq.

http://bayarearealestatelawyers.com/real-estate-law/do-i-have-to-tell-them-everything/#.VXDaa89VhBd

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The recent case of City of Pasadena v. Superior Court dealt with a situation whereby a city-owned tree fell on a private residence during a windstorm, causing damage.  The insurer for the homeowner paid benefits to the homeowner, and then sued the City for inverse condemnation and nuisance based on the damages caused by the tree.

The City filed a motion for summary adjudication, arguing that the tree was not a work of public improvement and that the insurer failed to submit evidence establishing negligence by the City.  The trial court denied the motion, and the City sought a writ of mandate.

THE DECISION

The appellate court denied the City’s petition for a writ of mandate.  The Court concluded that there were triable issues of material fact as to whether the tree was a part of work of public improvement.  The was evidence that showed that the tree was a street tree that was part of a city program to enhance its residents’ and visitors’ quality of life.  Moreover, the Court held that the city failed to meet its burden on summary adjudication to establish that it had fulfilled its duty of care.  As a result, the burden never shifted to the insurer to raise a triable issue of fact as to whether the City had been negligent in its maintenance of the tree.

WHY THIS DECISION IS IMPORTANT

Article I, Section 19 of the California Constitution provides that private property “may be taken or damaged for a public use and only when just compensation . . . has first been paid to the . . . owner”.  Therefore, this case clarifies that it is possible for a homeowner (or its assign, as here, the insurer) to seek to recover damages under an inverse condemnation theory when a home is substantially damaged.  Typically, we think of inverse condemnation cases being limited to some sort of explicit taking, such as taking land for the construction of public transportation or roads.

COMMENT

The most interesting take-away from this case may be the fact that the prevailing party in an inverse condemnation action may be awarded their attorney fees (C.C.P. § 1036).  Therefore, by filing suit under an inverse condemnation theory, the plaintiffs here have given themselves an additional sword to wield in negotiating a settlement.  One would assume that the legislature did not envision that a homeowner would prevail on an inverse condemnation case when damage occurred because of a broken tree, however this decision suggests such a result is possible.

City of Pasadena v. Superior Court, 228 Cal. App. 4th 1228

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Supreme Court Resolves Circuit Split Over TILA Rescission

by Henry Chuang May 7, 2015 Lending/Lender Issues
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Larry and Cheryle Jesinoski (“Jesinoskis”) refinanced their loan on February 23, 2007 with Countrywide Home Loans, Inc. (“Countrywide”).  Three years later, they sent a written letter to rescind the loan pursuant the Truth in Lending Act (“TILA”).  A year later, after Countrywide refused to rescind the loan, the Jesinoskis filed suit to rescind.  Under TILA, […]




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HOAs May Not Reject Partial Payments on Assessment Liens in Order to Prosecute Foreclosure

by Simon Offord April 23, 2015 Foreclosure
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The recent case of Huntington v. Miller confirmed again that a HOAs must accept partial payments and are limited in their ability to foreclose on an assessment lien when such lien is for less than $1,800.00. In Huntington, an owner of a unit in an HOA became delinquent in payment of their regular assessments.  The […]

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Actual Property Damage Required to Obtain Attorney Fee Award in Trespass Action

by Simon Offord March 9, 2015 Boundary Dispute
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The recent case of Belle Terre Ranch, Inc. v. Wilson clarified that in order to recover attorney fees in a trespass on land for “cultivation” or raising livestock under Code of Civil Procedure § 1021.9, you must obtain an award for property damages. In Belle Terre, both Plaintiff Belle Terre and Defendant Wilson were using […]

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