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Friday, April 11, 2014

Litigation continues

Beginning of the story you can see here http://nadejda-healingjourney.blogspot.com/2014/03/litigation-how-it-started.html

We decided to file with the court and found that there are many cases which are support our case. To file with the court you will need pleading paper you can see sample here http://office.microsoft.com/en-us/templates/legal-pleading-paper-28-lines-TC103992040.aspx

WE did not asked for any compensation or injunction, we just explained the situation and asked that this smal part of parking lot would be granted us as easement. we asked for equitable easement, because , though this part was in use a lot of time and can qualify for prescriptive easement , but the permission to use it from neighbor prevents it to be prescriptive easement.

There are several types of easements: Express easements, created by grant deed or contract, i.e., agreed to by the parties and in writing; Implied easements, arising from the inferred intent of the parties upon conveyance of title under cases of reasonable necessity; Equitable easements, granted for long-time use and improvement of land, continuance of which would cause little harm to the property owner and cessation of which would cause irreparable harm to the user; Prescriptive easements, based on continuous, open and observable use of the land for 5 years or more Easements by necessity, created to allow otherwise practically impossible use and enjoyment use of property that is landlocked as a result of severance of parcels http://randicklaw.com/blog/2011/06/equitable-easements-in-california/

Terms under which easement in situation closest to our situation can be granted set forth in Authority ALI TASHAKORI, et al., Plaintiffs and Respondents, v. JOHN LAKIS, as Trustee, etc., et al., Defendants and Appellants.

1. They did not create the easement it was there long before they bought the property ;

2. They brought the claim for easement as Plaintiffs ;

3. “The court further found that “[t]he Lakises will suffer very little or no harm from the Tashakoris’ use of the driveway and easement area. The Lakises do not use and have never used the shared driveway, nor the land on which the driveway sits,”;

4. “The area is completely separated from the main portion of the Lakis property by a fence and vegetation, and is thus not accessible from the rest of the Lakis property without scaling the fence.”

5. “ The Lakises do not pay and have never paid for upkeep of the shared driveway, nor do they maintain and landscape or have they ever maintained or landscaped the area surrounding the driveway.;

6. “The land on which the easement area is located essentially provides no benefit to the Lakises.”

7. And: “The court noted that the Lakises presented no evidence to suggest that there would be any diminution in value to their property should the court grant the equitable easement sought by the Tashakoris. ”.

8. The trial court found that the Tashakoris were innocent, and their encroachment on the Lakis property was neither willful nor the result of negligence.

9. The Tashakoris reasonably relied on inaccurate representations by the real estate broker and the prior owner.

10. In Tashakori : The potential future use of the driveway by one additional family, should a house ever be built upon Lot 18, will not create a significant additional burden on the easement or the land on which it is located.

11. The court thus entered a judgment granting an equitable easement to Tashakori.

Also some other law cases can be applied: though Tashakori case is about usage of driveway Court deemed for example, in (Miller, supra, 270 Cal.App.2d 289) there the plaintiff successfully sued to establish a right of ingress and egress to his property over a portion of the defendant’s property. Acknowledging that in previous decisions applying the test “the courts were dealing with fixed structures which encroached on the property of another,” the appellate court concluded that “[t]here is no difference in principle, only in degree, between a driveway which cuts across a corner of lands of another and so encroaches 24 hours a day, and the transitory passage of vehicles which intermittently invade such lands.” (Id. at p. 306.).

To be continued

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