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Sunday, February 24, 2013

Vineyard Purchases: Avoid Attorney Fees, Get a Survey


All too often purchasers of real property make assumptions about the extent of land included in their purchase, relying on visible landmarks such as tree lines and existing fences.  Despite the opportunity, and many times admonitions, to engage a land surveyor prior to the consummation of a purchase, prospective buyers often times wait until after the fact, or not at all, to conduct a survey.  In doing so, the buyers may be setting themselves up for serious consequences that translate into large dollar expenditures.

Let’s assume that you’ve purchased land on which you intend to plant a vineyard.  Let’s further assume that there is an existing fence that you were either told or presumed was the common boundary between you and your adjacent neighbor.  Now let’s go one step further and assume that you have gone to the time, trouble and expense of assessing the soil, contracting for vines, installing the trellising and irrigation and planting the vines. All is proceeding along until the adjacent land is sold, the new neighbor has a survey performed, and several rows of your maturing vines are now indisputably located on your neighbor’s property.  What recourse do you have?  California law provides for use and ownership interests in the lands of others provided that certain conditions are satisfied. 

You may claim a possessory (versus ownership) right if you have used the land in question openly and notoriously, under claim of right (without permission), for five continuous uninterrupted years, hostilely (figuratively speaking) to the true owner of the property in question.  If you personally have not used the land in question for five continuous years, you may be able to “tack” your predecessor’s time of possession onto your actual possession to satisfy the five-year time frame.  Assuming you can unequivocally establish these five elements, you may claim a prescriptive easement in the property; a right to use the property distinct from ownership of it.

If you can establish one more element, i.e., that you paid real property taxes on the land in question for five continuous years, you may be able to claim exclusive possession, i.e., ownership, of the property under the theory of adverse possession.  You have the burden of proving that you not only used the property openly and notoriously, under claim of right, for five continuous uninterrupted years, hostilely to the true owner, but also that you paid the assessed taxes on the property.

Conclusively establishing your claim of use under a prescriptive easement or ownership under adverse possession often times requires a lawsuit to quiet title, which can be an expensive proposition. 

When buying land for a vineyard or even planting a vineyard on land you believe have owned for a while, engaging a professional land surveyor to confirm the exact boundary line may be the proverbial ounce of prevention needed to avoid costly issues in the future.

For more information on real estate issues contact Delphine Adams at dadams@dpf-law.com  

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