Sort-a-sounds like acquiescence? See Jeff Lucas article in latest issue of POB.
I'm pretty sure where this would go if in Utah. California maybe not from a few cases I've read and other things I've heard through the years.
Without knowing much about this particular situation, I have a few general comments:
First, the developer hired an engineer. That makes his survey suspect right off the bat. Most engineers believe their job, with regard to boundaries, begins and ends with laying out record dimensions, physical and other documentary evidence of differing locations be damned. Maybe that criticism is a bit too harsh as their are a few RCE's who are good surveyors. But most aren't and couldn't recognize a latent ambiguity if the deed dimensions put them in the middle of a 6 lane freeway.
AP is usually very difficult to prove in CA because of the requirement of having paid all property taxes in a timely fashion throughout the entire period of adverse occupation.
If the parcels in question are parcels shown on a subdivision map (Tract Map or Parcel Map), and the lot owners are occupying in conformance with the map, then there's two possibilities:
1) The map by which they took possession is correct and they own it according to already valid written title and the developer is attempting ejectment on the basis of a faulty survey;
or
2) The map by which the landowners took possession was wrong, but they occupied in good faith, the subdivision had been approved after being the subject of several public meetings, and the status quo has existed for so long unchallenged that they now have valid title claims by AP.
I've also seen several instances where residents of lots at the edge of a subdivision backing to undeveloped land have gradually expanded their back yards into the undeveloped parcel to the point that when the party with written title tells them to vacate, it seems that they would lose half their yard. Since CA does not require that a survey be performed when land is conveyed, and lenders don't typically require it unless it is for commercial property or land bought for a development project, these growing lots can be conveyed with the purchasers never being the wiser if they don't know how to read a map and judge distances on the ground.
If this is a case like that, then the developer is correct and the lot owners would be SOL. They would have only been paying taxes on the parcels that they have written title to.
If the supposedly encroaching parcels are not subdivision lots, but are M&B, or otherwise described such the boundaries would not normally be as readily identifiable as those of a subdivision lot, and if the assessments had been performed and are written such that improvements and enclosures (fences, etc.) are described and part of the assessed value, they may be able to prove up the payment of taxes element.
The suucess of an argument based on acquiesence would depend in large part upon when the developer or his predecessors in title knew or should have known of any encroachments and whether or not they attempted to take steps toward ejectment or to establish permissive use.
I would not argue adverse possession, because from what is posted not all the elements are met. Most likely the new survey is wrong. If the case is that the 50 year old map is wrong, the innocent lot buyers relied upon that map detrimentally and have resided within the bounds of that map without controversy for 50 years, then the boundary has been practically located and the doctrine of repose would suggest that the boundary not be disturbed....
It looks like a a strong case for a prescriptive easement might be made.
> It looks like a strong case for a prescriptive easement might be made.
I'd take odds against that. At least not at the appellate level.
Ca. courts have repeatedly stated that exclusive use is one and the same as fee simple and often does not therefor qualify as an claim of prescriptive easement.
From what limited information is in the original post link, it has a strong smell of exclusive use such as would be the case of a house over the line.
1: I wonder if the news report is using the term "engineer" and "surveyor" interchangeably.
2: I couldn't see the whole plat, but it doesn't look like there was any sort of seal on that drawing.
3: I wonder if the current "engineer" didn't start at the back of the curb and start measuring... unlike what a surveyor would do.
For the residents sake, I really hope that the "engineer" and developer have made a huge mistake and that some SURVEYOR can actually figure out what is going on there.
Well if it goes the other way...the new developer has established what he thinks is a fair price...
