Property Disputes

How effective can an expert witness be in determining the outcome of your real estate lawsuit?

Even if the homeowner has the only expert witness regarding damages in an eminent domain action, that testimony needs to be grounded in a proper interpretation of the Hiring an expert witness for your real estate lawsuitlaw, or it will be barred, and the homeowner will not recover any damages in excess of the fair market value of the house.

This rule was applied in the recent McNamara case where the family sued the Department of Transportation for taking their house for an improvement project in Prunedale. The McNamara appraiser conceded that the decrease in the value of the their home from September 2006 when the project was approved, and the date of valuation of the house in July 2008 when DOT filed its lawsuit, was due to the general market decline, and Caltrans was not responsible for the decline.

Significantly, the DOT had not restricted the McNamara’s sale of their property before July 2008, and the Appellate Court cited the rule in the Klopping case that any losses occasioned by a general decline in property value that occur before the date of the taking must be borne by the property owner. In other words, if the general market decline caused the loss of value, the property owner cannot hold the DOT responsible due to general market decline. The McNamara appraiser admitted he could not attribute the property’s loss due to anything other than the market’s decline. Continue reading

Real estate investor partners: Is your word good enough?

Legal Documents: How you sign is as important as what you signWith prices appreciating, and loan rates and inventory low, there is an increased willingness to own real property by two or more investors who need to combine their capital and/or credit to participate in buying, and flipping or renting the property.  Often, the investors’ focus is on selecting the property or raising the down payment, with little or no consideration for what happens if co-owners disagree, one wants  out, or the optimistic expectations are not realized.

A popular formula in the current flipping frenzy is for one investor to obtain the loan because of a superior credit rating and taking title, while the silent investor contributes funds for the down payment, and perhaps occupies the property as a de facto tenant paying “rent” as the monthly mortgage payment, and sharing the insurance, taxes, and other costs of the property.  This allows the purchase and investment by investors who could not otherwise participate by themselves, and increases the number of players in the market. Continue reading

Q: My neighbor's camphor tree has branches that overhang the wall between  our properties, and its roots are extending into my yard and damaging both  the wall and my patio deck. Can I cut the branches and roots and bill my  neighbor?     A: With recent developers positioning houses very close to the property lines to  maximize the number of houses in the development, it is more common for  branches and roots of a tree to extend over and into the property of the adjacent  owner. Although the adjacent owner has rights to cut the intruding branches and  use any overhanging product, such as fruit, both the tree's owner and the adjacent  owner have certain duties and responsibilities depending upon the particular  circumstances.  First, the location of the trunk of the tree determines who owns it, even if the roots  grow into the land of another. If the tree is located directly on the boundary line  between the properties, then both landowners have common ownership of the tree  which affects application of the rules described below. Neither owner has a right to  cut down a tree on the property line or cut any part without the consent of the other  owner, even if the tree is causing damage.  The most common situation is a tree owned by a neighbor that has branches or  roots, or both, that intrude over and into the property of the adjacent landowner.  The rights and liabilities of the landowners depends upon the particular  circumstances created by the nature and extent of the encroachment.  Both the tree's owner and the adjacent owner should try and agree on a remedy to  the encroaching roots before either takes any action. It is always beneficial to  document any attempt to have a tree's owner act reasonably to limit encroachments  caused by the tree because if a court action is ultimately required, the  documentation will demonstrate the good faith of the adjacent landowner to resolve  the dispute before resorting to self‐help or legal action.  The tree's owner is responsible for any damages that are caused to the adjacent  owner from falling branches or roots. So it is in the best interest of the tree's owner  to control the growth of the tree so it does not create a source of potential damage  to the adjacent landowner.  In the situation where a tree is located entirely on the neighbor's property, and  reasonable good faith efforts to resolve the dispute are unsuccessful, then the  adjacent landowner has certain rights. For example, the adjacent owner can cut the  branches and can collect any product, such as fruit, that overhangs his property.  However, the branches can only be cut back to the property line. The adjacent  owner cannot enter the neighbor's property and cut the tree down. Such conduct  would be viewed as trespass of the neighbor's property and exposed the adjacent  owner to a claim for damages based upon the value of the tree. If the court  determines that the cutting down of the tree was willful and malicious, the tree's  owner may recover treble damages under Civil Code, section 3346, and Code of Civil  Procedure, section 733.  If the branches are so extensive or high that a profession arborist is required to  remove the encroachment, the bill can be sent to the owner of the tree, and if  payment is refused, a small claims action can be filed to recover damages in the form  of the cost of removal.  If the roots of the tree extend onto the property of an adjacent property, then the  tree owner is responsible for a trespass and the owner of the adjacent property can  cut the roots if they are causing damage. Therefore, while there is an absolute right  to cut back encroaching branches, encroaching roots can only be cut if there is  evidence of damage to the adjacent property. If the roots are cut when there is no  damage evident, then the tree's owner may recover damages if the tree is damaged.  Encroaching branches and roots that cause or threaten damage may constitute a  nuisance and a court may agree to issue an injunction against the encroachment.  However, in order to obtain the injunction, the court will typically require a showing  the branches or roots are causing damage or otherwise interfere with the use and  enjoyment of the adjacent landowner's property.  The best course of action when a neighbor's tree is encroaching is to discuss the  issue and attempt to work out a solution with the neighbor, and if an agreement can  be reached, then the terms should be reduced to writing and signed by both parties.  Before using self‐help or filing a court action, written communications should be  sent to document the nature and extent of the good faith efforts to resolve the  dispute. But if all else fails, then the general rules outlined above should be  considered, and professional advice obtained, before taking any action.  The opinions expressed in this article are those of the author and not the Daily News.  Individual circumstances may vary and professional advice is recommended before  making decisions.Q: My neighbor’s camphor tree has branches that overhang the wall between our properties, and its roots are extending into my yard and damaging both the wall and my patio deck. Can I cut the branches and roots and bill my neighbor?

A: With recent developers positioning houses very close to the property lines to maximize the number of houses in the development, it is more common for branches and roots of a tree to extend over and into the property of the adjacent owner. Although the adjacent owner has rights to cut the intruding branches and use any overhanging product, such as fruit, both the tree’s owner and the adjacent owner have certain duties and responsibilities depending upon the particular circumstances.

First, the location of the trunk of the tree determines who owns it, even if the roots grow into the land of another. If the tree is located directly on the boundary line between the properties, then both landowners have common ownership of the tree which affects application of the rules described below. Neither owner has a right to cut down a tree on the property line or cut any part without the consent of the other owner, even if the tree is causing damage. Continue reading

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