Quiet title

[bearishgurl]

Here is the full cite:

Harbour Vista LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, [134 Cal.Rptr.3d 424]

For those who belong to myfindlaw.com, here is the full opinion:

http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/201/1496.html

[bearishgurl]

[quote=Blogstar]. . . I wonder if the quiet title action isn’t easy “churn” for the lawyers , or the best way to start a fight that add$ up? . . .[/quote]

I saw this website earlier:

http://www.kinseylaw.com/clientserv2/civillitigationserv/realestate/quiettitle/quiettitle.html

Here is an attorney (in LA Co) who will give you a two-hour consultation and prepare the papers for you for a “quiet title action” with a “Limited Scope Representation” agreement. He charges a flat rate of $1000 for these services (see bottom of page). You will likely file the case with your Superior Court branch and have the other party served and represent yourself in court.

Maybe there is a good RE atty here in SD County who works like that (I don’t know of one) or you could use the atty in the link (have phone consultations and have him prepare your suit and e-mail it to you).

There might be a problem though if the other party fails to timely respond to your suit. You will not be able to take a default judgment in this type of action and will have to schedule an “evidentiary hearing” with your opponent:

see: http://www.jdsupra.com/legalnews/default-judgement-is-not-available-in-ac-90555/

I’m unsure if you could handle that by yourself, especially if your opponent obtains a lawyer mid-stream.

[bearishgurl]

I should add that “you will not be able to take a(n) automatic default judgment.” Whether or not the defendant shows up at the evidentiary hearing, the court will make a ruling on the “quiet title” action only. The plaintiff is not obligated to serve or notify the defendant of the evidentiary hearing … only to set the date with the court. Procedurally, the court will then send the defendant a Notice of Hearing. If the plaintiff has other causes of action pending in their complaint, they will NOT be adjudicated at the evidentiary hearing (Harbour Vista, LLC, v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496 at 1508-1509).

[Hobie]

Hey Blog. I very confused. And I didn’t read your other reference post to refresh memory.

1.Who owns the land?
2.Did you mention that easement is shared with other people besides yourself?
3. Not sure where the quiet title comes in. Who is wanting it? My understanding that granting an easement (permission to trespass) blocks any adverse possession action.
4. Are there signs posted stating no trespassing?
5. Do you have photos of fence and tractor blocking easement?

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edit:
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I just reread your post.

So the ass neighbor owner bought his property knowing it had a previously recorded easement granting you permission to trespass. Now he wants to sue you for quiet title thinking that will remove the easement?

I’m guessing that a lawyer letter telling him to keep off and remove the fence is necessary. Then it becomes a civil matter whereby you call cops and have tractor ‘arrested'( prevent him from moving it before tow truck arrives) and towed.

Or, are you thinking sueing him for quiet title? In other words you want him to give you the portion of property granted in the easement to you. Then you are clear title holder to that piece. See #3 above.

I think you already have the correct legal stuff in order and your problem in just enforcement. ..and living next to such a jerk.

Oh, and to speak to your original question here I think the two lawyers you have just spoken with don’t understand the situation or are wanting to spend your $.

This type of stuff requires and exclusive real estate specialist atty. I don’t you need this right now and try not to as it get very expensive very fast. Lots of research time. Don’t be lured by a seemingly low starting retainer fee. That is just a hook to get you to sign up. Slight threadjack:)

[NotCranky]

No he does not want to sue me. I am being forced to sue him but want to sue him only if I have to, for interfering with the easement and maybe some other stuff against my person. The lawyers say that along with that, I need to do a quiet title. At the same time they admit that there is no way he could get away with an adverse possession claim. The neighbor knows it’s mine as he has given me three different “one time offers” to buy me out. He is, one by one, trying to drive people off the easement .

He has succeeded with some old people who only had a prescriptive easement but couldn’t afford to fight him. One other neighbor has the same easement paperwork I have and I think his idea is that he will try to get them last. I wish the old couple would have told me so we could work together even if I paid for it. I don’t know the other family. They know he is nuts,but he doesn’t do anything to them so talking to them about him might just seem weird to them. He lets them drive around the fence in the easement on a nice looking road. I don’t even know if they know it’s not in their easement. I doubt it. So if I let him win with me , he will be able to kick them off when he is ready!

I just want to start using the easement without stepping down to this guys level of personal conduct.

[NotCranky]

del.

[Hobie]

At the same time, you cannot claim adverse possion against him. I’m not an attny but it seems strange to bring quiet title into this. As I see it, you have a legal easement for this roadway and he is interferring with that enjoyment. And, there are other folks that share the same easement.

Again, I think this is a civil enforcement matter not a new issue as to who holds title. Does that make sense? What about a restraining order against him?

Seems like all grantees to that easement need to band together and issue a letter communicating to the dick to keep off the easement and no further harrassment.

I would also think the prescrptive easement by the old people would help you as it shows the good use of the land longer than you have had your paid easement.

This is where the legal fees should go. Am I missing something?

Ok, so are you planning on suing for damages to repair the road plus personal stuff?

[NotCranky]

I think you’ve got it on the title and enjoyment. Putting it to the attorney’s I have interviewed again. On the prescriptive easement of the older folks. That is a ship that has probably sailed, but I know the attorney they worked with as of yesterday so I will talk to him about it. Nice old couple and I would like to see this guy get elder abuse charges.

I am forced to sue because I am reluctant to just cut down the fence at this time and…..without a record and the punishment if being sued, he more easily goes back to “rogue” anytime he wants to. Think spoiled child.

[Hobie]

I think the question to the attny is simply, I got the easement and he erected a fence blocking it. Please write letter ordering him to remove it and put the roadway back in original condition. This add more paper trail for you.

Prescriptive easement is gold for you as it was in use before you or the ass moved in. I’d want an affadavid from old people ( assuming they will go soon) confirming the use of the road for x years. This kind of thing weighs heavily in your favor.

This kind of boundry dispute is really old law ( think Romans) and there is a ton of case law. From this distance, you and your neighbors have every right to the road and the ass needs to worry about not getting thrown in jail for harrassment or worse.

[Hobie]

I wondering if the quiet title action is a throwaway in term of negioating with the troublemaker? Seems like a non issue and just a money grab from atty.

Still not sure why you need to originate lawsuit. I’m thinking the demand letter to remove the fence and you remove it and bill him if no compliance. Then he would be the one to start a lawsuit. But for what? Trespass? Clearing the easement?

[FlyerInHi]

I’m with Hobie. Start with a letter from attorney.

Seems like some people out in the country have issues. I know some people whose neighbor down the road had dealt with such situation. A wacko old man barricaded an easement and started shooting at people. This is an area with people do target shooting and nobody worries.

[NotCranky]

I got serious on the phone with one of the attorney I am interviewing now. Ask him directly about quiet title. He tried to get away with just saying it’s standard.
I said some people think ‘churning’ people’s troubles is standard too. I asked him why it should be standard if I have good title. And he said he’d have to look at that. SO yeah, probably big sales job by all these guys and gals. The quiet title is a fixed cost thing so even if the guy doesn’t fight title claims, and settles quickly, or doesn’t even answer the claim and I win by default, they can take some additional money from me.

Going for another free consultation early next week with this same attorney and will get more into the possibility of a strong letter, served, or delivered verified contents.

I feel like we are in a pretty good place with this.

About the gun shooting practice, It does bother a lot of people, but the police won’t enforce even the regulations that exist. The police won’t enforce a lot of things. Short of bloodshed we don’t have police protection out here, lame ducks.
The worst thing is they treat people poorly when we ask for protection. I think they do this to cover up that we can’t have any.

[bearishgurl]

[quote=Blogstar]I got serious on the phone with one of the attorney I am interviewing now. Ask him directly about quiet title. He tried to get away with just saying it’s standard.
I said some people think ‘churning’ people’s troubles is standard too. I asked him why it should be standard if I have good title. And he said he’d have to look at that. SO yeah, probably big sales job by all these guys and gals. The quiet title is a fixed cost thing so even if the guy doesn’t fight title claims, and settles quickly, or doesn’t even answer the claim and I win by default, they can take some additional money from me.

Going for another free consultation early next week with this same attorney and will get more into the possibility of a strong letter, served, or delivered verified contents.

I feel like we are in a pretty good place with this. . . [/quote]

Russ, in order to your legal counsel to determine if you need to file a “quiet title” action, they have to take time to examine the condition of your title (and possibly any other “titles” which are germaine to your case). It is very possible that there ARE defect(s) in your title which you are not aware of.

If this attorney which you are going to meet with is willing to file a quiet title action for you for a fixed cost and that fixed cost INCLUDES a (likely) evidentiary hearing, then you need to seriously consider going that route, imho. Especially if he writes and sends the certified letter and it doesn’t do any good.

Remember that as of January 2012, one cannot take an automatic default in CA in a quiet title action.

[Hobie]

Blog: I feel you are with the wrong atty. ‘Fixed cost thing’ is bs.

“so even if the guy doesn’t fight title claims, and settles quickly, or doesn’t even answer the claim and I win by default”

This doesn’t make sense. You don’t and cannot gain title short of purchasing the rest of his property and you already paid for an easement on his land. There is nothing for him to settle. What do you win by default??

Time to focus. The issue is the easement not title. You paid for the right to trespass someone elses property legally through an easement. Period.

Find a real estate only attny and pay him for the letter. That’s it.

Then proceed with enforcement. Photos and call cops like I already mentioned. If he brandishes a weapon, then he goes to jail. Where a GoPro when you egress.

You are not in good place with this. You don’t have all the options to make decisions. He gave you bad advice and is simply trying to win you over again with another meeting next week.

Grr.

edit————
You mentioned you have title. To what? Is your easement in the form of a grant deed? If so that is not the title you are thinking of. It’s just an easement.

[NotCranky]

Sorry some confusion, I made the fixed cost statement not the attorney. I am just saying that they are guaranteed to make some money running the quiet title even if the defendant settles quickly on all other issues.

Could be the wrong attorney for me but all of them have suggested the quiet title in the same manner. This attorney was actually recommended by an escrow officer I have known for 20 years and is golden to me. Going to take the free consultation, but not taking a check book with me. They did say that I decide the scope , not them, so we might be able to get on track.

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