Not being licensed in California and needing information I hope and am sure you folks will help me out. My cousin bought a house in a subdivision in Pam Springs which was part of a large estate (Main House Lot). A predecessor did a BLA moving the lines around to make sure the small guest house was on a lot with the required setbacks and a third lot, which didn't meet the minimum size, could be purchased by any adjoiner. The purchaser of the guest house also acquired the smaller tract. All this appears to be approved by the City lst spring.
Here is the problem. The estate sat on a corner lot. After the BLA, the Main house sets on one street but is cut off from the other (former access) so the City approved a new driveway access to the street it fronts (no problem). Now it is discovered the underground utilities, including the sewer lateral ran under the original access and no easement was retained for the Main House Lot. The City has informed my cousin she needs to move the lateral (no sewer on her street access estimate $30k) and all the buried electric and phone lines (no overhead, all underground) AND also informed the owner of the guest house lot the utilities are encroaching and shall be removed at my cousin's expense "I apologize that we were not aware of this situation before the lot line adjustment was completed".
In our county and cities, the local authority must approve a BLA before it is approved. The surveyor must show all utilities either above or below ground, any existing easements, and building setbacks before and after the BLA. Doesn't Palm Springs require this since it was approved by the City Engineer? If they approved the BLA without any maps submitted shouldn't they be responsible? Does anybody know if Palm Springs has an innocent purchaser statute to protect some buyer from something like this happening? What are the statute for unrecorded easements? Thanks
There may be an implied easement by common law.
You may also post this on the California Forum...
http://clsaforum.californiasurveyors.org/phpbb3/viewforum.php?f=6
From Piazza v. Schaefer, 255 Cal. App. 2d 328 (1967):
[INDENT=1]The purpose of the doctrine of implied easements is to give effect to the intentions of the parties, as shown by all of the facts and circumstances of the case. ( Fristoe v. Drapeau, supra, 35 Cal.2d 5, 8.) In Fischer v. Hendler, supra, 49 Cal.App.2d 319, 322, the court declared the following factors essential to the creation of an easement by implied grant: "(1) A separation of the title; (2) before the separation takes place the use which gives rise to the easement shall have been so long continued and so obvious as to show that it was intended to be permanent; and (3) the easement shall be reasonably necessary to the beneficial enjoyment of the land granted." Here the trial court found all the essential elements of an implied easement present in the evidence and so declared by its judgment.[/INDENT]
generally speaking you are at the mercy of the Local Agency. do your homework. Educate them, perhaps appeal to the City Council.
perhaps you can create a new easement that will satisfy them rather than construct new facilities.
Probably a Local Surveyor has experience and rapport with the Civil Servants and/or City Council members.
Dave is 100% correct, but in my experience making a good legal case is a last resort. The City Attorney will probably weigh in on the side of the lanning staff unless he/she is instructed otherwise.
good luck!
(the CLSA forum that Dave linked would be a great place to find assistance)
If the utility work has to happen there is no shortage of folks that should pay for it: the incompetent City staff, the incompetent surveyor/engineer who did the Lot Line Adjustment (LLA, not BLA), or the owner who sold the property. City code says you shall show utilities on the application map, but I don't see the requirement in the standard application package directions. Were all properties under one ownership at the time of the BLA? Can you find evidence the LLA party(s) or subsequent property sellers knew utilities and failed to disclose? Regardless, fault lies with the City and the surveyor/engineer.
BajaOR, post: 324995, member: 9139 wrote: fault lies with the City and the surveyor/engineer.
There is no Fault of anyone involved in the BLA. the "problem" is the nutty requirement they are trying to impose.
More a question for the attorneys than surveyors. Sure there will be surveyors who will opine on legal responsibility here, but these particular questions are not those of boundary location. While it is true the surveyor/engineer who assisted the owners of the LLA (not BLA in CA) has exposure to a potential lawsuit, any opining thereof is the purvue of those practicing law, not surveying.
I do find it curious that the city is the one placing demands on the owners, especially after the fact. I would think this is more a civil matter between the adjoining owners, with the city being only involved due to its potential exposure as an approving authority. I personally would not place odds on any recovery being gained against the city.
Are the neighbors amicable to simply granting an easement to provide for clarity of title? It would seem that would be the most reasonable solution for this situation. Of course a thorough review of the complete set of facts may lead to a different conclusion.
I suggest guidance be obtained by a competent real estate attorney. Or, you may find some free legal guidance from the DIRT Board, which is a forum of real estate professionals frequented by real estate attorneys.
Peter & Dave: Regardless of the ultimate fix, problems are created for an innocent buyer because professionals involved in the process did not ask one question: What does this boundary adjustment do to the things needed for the enjoyment of the resulting property: access, sewer, water, and dry utilities? The LLA process exists only to have professional planners, surveyors /engineers weigh in to protect the innocent buyer. Yes, I know that's a generous conclusion to make about planners.
To answer some of the questions asked and comment on the comments (is that like a double negative?). The City attached a simple drawing in the letter to her and showed cleanouts on the line. She in turn, hired a company to run a camera through and determine the depth so she could see where it actually is on the ground. Since the City also sent a letter to the guest house owner, that owner sent a letter to my cousin informing her she needs to remove the utilities. Because this two structures were both on the same parcel up to a point, both the guest house and main house electric meters were located on the guest house for the meter reader. The new owner has contacted the electric company and had them remove the main house meter so they put a temporary line to the main house (overhead) across the guest house parcel. There is now electric power on the street which now provides the access to the main house.
I have her investigating whether or not the City requires an application and any drawings or decisions the City required for the BLA approval.
The City of Palm Springs does not appear to require utilities be shown on the application plat:
http://www.ci.palm-springs.ca.us/home/showdocument?id=35799
If the guest house owner won't agree to provide a written easement then the alternatives are litigation to prove an easement or move the utilities as requested by the City. Moving the utilities may be cheaper than litigation and more certain (the Judge could rule there is no easement).
City's LLA Application procedure makes no mention of access or utilities mapping being required:
38.106.5.213/Home/ShowDocument?id=34495
City's Application procedure package apparently failed to address required item (a) (2) (C) here:
http://www.qcode.us/codes/palmsprings/view.php?topic=9-9_60-9_60_070
Responsible City employee is Director of Planning:
http://www.qcode.us/codes/palmsprings/view.php?topic=9-9_60-9_60_080
Engineering Department responsible as well:
http://www.ci.palm-springs.ca.us/government/departments/public-works-engineering
or http://38.106.4.129/index.aspx?page=86
If it's not obvious, I find the actions of the City and the Engineer/Surveyor to be quite careless. I hope your cousin settles this without too much grief.
Dave, You state the application does not appear to require utilities to be shown on the plat yet the application link provided by Mr. BajaOR states it must show any existing structures or other improvements. I do a BLA about every month or advise potential clients about the process. I do feel utilities are an improvement, especially when the City employee could find clean outs along the line. I ask if it is on public water or sanitary so I know if we need to look for a septic or drain field area to map. I find it odd the application was submitted and the legal descriptions stamped by a PE not a PLS. Is that legal in California? I also find it odd the approving City engineer did not think about there not being sanitary on the frontage of the Main House, but not asking how the structure was served.
Civil Engineers licensed before January 1, 1982 are authorized to practice Land Surveying in California.
The last Civil PE authorized to practice was John Lee Wallace, RCE33965. RCE33966 and higher would have to obtain a separate LS license in order to practice land surveying and they would be required to use their LS number and stamp on any documents.
As pointed out by [USER=9139]@BajaOR[/USER] it appears the city code requires showing "other improvements" which could be interpreted to mean utilities. The LLA process could use a lot of improvement, for sure. It varies a lot by local agency.
Howard Surveyor, post: 324969, member: 8835 wrote: ..... In our county and cities, the local authority must approve a BLA ... The surveyor must show all utilities ... any existing easements, and building setbacks before and after the BLA. ..... If they approved the BLA without any maps submitted shouldn't they be responsible?.....
The requirements are much the same in every jurisdiction in my area, enforced with various degrees of enthusiasm. But I object to your contention that if the city approved the BLA they become responsible for a negative outcome.
Part of the review process that the local agency is supposed to perform before approving an LLA is that the resulting lots will have the same level of services as the pre-LLA lots. In the case of an existing home with existing services, that would include ensuring that the existing home continues to have access to those services. It could be argued that the LLA approval includes an implied easement for the existing utility service lines. There is also the possibility that a prescriptive easement has been created. Best to have the cousin consult a knowledgeable land use attorney prior to either agreeing to move the utilities or challenging the requirement to do so.
Norman Oklahoma, post: 325055, member: 9981 wrote: The requirements are much the same in every jurisdiction in my area, enforced with various degrees of enthusiasm. But I object to your contention that if the city approved the BLA they become responsible for a negative outcome.
You may object, but it wouldn't be the first time I argued for the removal or reduced cost of a connection fee due to negligence on the approving agency.
Howard Surveyor, post: 325136, member: 8835 wrote: You may object, but it wouldn't be the first time I argued for the removal or reduced cost of a connection fee due to negligence on the approving agency.
Several years ago I had to replace the sewer service to my 100 year old house. The original line did not tie into the main sewer line adjacent to my house but cut across my property and between my neighbors house and garage to tie into the cross street to the east (their lot was broken off mine in the 30's). Since my title report did not show an easement across my neighbors property I opted to run the new line out to our street. The sewage agency's first response was that since they did not have a record of a connection fee being paid in 1910 that I would have to pay a new hook up fee. I then informed them that I would like a rebate for nearly 100 years of sewer bills at which point they agreed that I could replace my line without the fee. The crappy thing was that I later recovered the initial deed for the neighbors property which included an easement across their property which was not indicated on my title report.
John Putnam, post: 325164, member: 1188 wrote: Several years ago I had to replace the sewer service to my 100 year old house. The original line did not tie into the main sewer line adjacent to my house but cut across my property and between my neighbors house and garage to tie into the cross street to the east (their lot was broken off mine in the 30's). Since my title report did not show an easement across my neighbors property I opted to run the new line out to our street. The sewage agency's first response was that since they did not have a record of a connection fee being paid in 1910 that I would have to pay a new hook up fee. I then informed them that I would like a rebate for nearly 100 years of sewer bills at which point they agreed that I could replace my line without the fee. The crappy thing was that I later recovered the initial deed for the neighbors property which included an easement across their property which was not indicated on my title report.
I suspect the Title Company would have had to pay off if the sewage agency stuck to its guns concerning a new connection fee.
