What is Eminent Domain?

Eminent Domain is the power to legally take your property

Eminent Domain is the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. The Fifth Amendment to the U.S. Constitution requires the government to provide just compensation to the owner of the private property to be seized. A variety of property rights are subject to eminent domain, such as air, water, and land rights. The government takes private property through condemnation proceedings. Throughout these proceedings, the property owner has the right of due process.

Elements of Eminent Domain

To exercise the power of eminent domain, the government must prove that the four elements set forth in the Fifth Amendment are present: (1) private property (2) must be seized (3) for public use (4) and with just compensation. These elements have been interpreted broadly.

Private Property The first element requires that the property taken be private. Private property includes land as well as fixtures, leases, options, stocks, and other items.

Seized The second element refers to the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value. Property value may be reduced because of noise, accessibility problems, or other agents

Public Use The third element, public use, requires that the property taken be used to benefit the public rather than specific individuals.

Just Compensation The fourth element set forth in the Fifth Amendment mandates that the amount of compensation awarded when property is seized or damaged through condemnation must be fair to the public as well as to the property owner. Because no precise formula for determining it exists, just compensation is the subject of frequent litigation.

What should I do if I am the subject of Eminent Domain

You should get experienced legal help immediately. The condemning agencies retain experienced eminent domain professionals, and you should too. Know and protect your rights. The government must pay the highest price paid by knowledgeable buyers on the open market.In most situations you should pay attorney’s fees only if you recover more than the government’s offer.

DiJulio Law Group
http://www.dijuliolawgroup.com

Fences and Boundary Line Disputes

Fences are frequent sources of boundary line disputes

Fences are frequent sources of boundary line disagreements and disputes. A business or a homeowner decides to erect a fence without first determining where the actual property line lies. His neighbor then learns that the fence was not placed on the actual boundary line, but on his property. The neighbor might decide that the fence being on his property (encroachment) doesn’t bother him and does nothing about it. This approach has the advantage of preserving good will between the neighbors. However, if either owner decides to sell their property, they will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.

Equal Contributions to Boundary Line Fence Maintenance

California code requires adjacent landowners equally contribute to maintain walls and fences between them, unless one of the two landowners chooses to let the remaining sides of his property remain unfenced. However, if that landowner later fences in his property, he will be responsible for payment of his proportional share of the original value of the common fence.

Spite Fences and boundary line disputes

What have become known as “spite fences” are also regulated by code. They are defined as “a fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” Trees and hedges that are planted in a row to form a perimeter may be deemed a fence. The law provides strong remedies, including injunctions, against “spite fences.”

Encroachment

A common question posed to real estate attorneys are in regard to a dispute with an adjoining landowner involving an encroachment. An example of encroachment would be when another person puts up a structure like a fence that intrudes on your property. This issue might come up if when one of your neighbors builds a structure that is partially on your property. Typically, the courts will apply one of three legal theories to resolve such a case. They are the doctrine of adverse possession or prescriptive easements, the agreed boundaries doctrine, or the relative hardship doctrine. Which method that would be most applicable in your particular situation is best determined by a qualified real estate attorney.

DiJulio Law Group
http://www.dijuliolawgroup.com

Easements and Property Dispute Resolution

The Right to Limited Use of Another’s Property

The use of easements is common, often laid out when a subdivision was created, which allows another party the right to use a portion of that property. Common examples of easements involve public utility or power lines, phone lines, underground pipes, and storm drains. An easement owner is entitled to a limited use or enjoyment of another’s land. A prescriptive easement is an easement that is earned by regular use. They are not purchased, negotiated, or granted. A prescriptive easement may offer a solution to a boundary dispute.

If you find yourself in the position of needing an easement or disputing an easement, DiJulio Law Group can assist you.

There are various types of easements used to address the many property access problems that arise.

Prescriptive Easements

A prescriptive easements may be considered as the acquisition of an easement by adverse possession or squatter’s rights. For example, if a property owner built a fence ten years ago and the owner of the adjoining property has now determined that the fence is several feet past the actual boundary line and decides to contest, a prescriptive easement may be sought that allows the fence to remain. A prescriptive easement is simply a right to use property, the user does not gain title to the land. A prescriptive easement involves only limited use of a property, for example a pathway or driveway. Payment of property taxes is not required.

Other Types of Easements

An easement in gross involves only property, and the rights of other owners are not considered. For example, a public utility line easement would be an easement in gross and would be recorded in the public records. If for any reason the title insurer fails to disclose a properly recorded easement in gross, and which then causes a problem later, then the title insurer must either pay you the diminished value of your property, or have the easement moved.

An example of an easement appurtenant would be an easement allowing you to drive over your neighbor’s property to in order to reach your property. This situation occurs in so-called “flagpole” lots that have no direct access to public roads. To create an easement appurtenant by necessity, the owner of the landlocked parcel must be able to prove in court that there was common ownership with one of the joining parcels that has public access.

Easements come in many forms, from view easements to implied easements to easements created by deed. Common concerns with existing easements include determining if there are options to have it removed. Seeking a prescriptive easement to resolve a boundary dispute is another common concern. All easement disputes, concerns, or questions are best dealt with by a qualified real estate and property law attorney.

DiJulio Law Group
http://www.dijuliolawgroup.com

Construction Claims: Cost Overruns and Delay Claims

Construction contract bidding is a complex process

Contract bidding is a complex process that requires owners and contractors to provide detailed information about a project. It is necessary in order to reasonably estimate the costs associated with building projects. Though detailed information and careful consideration may have been involved in the bidding process, inevitable changes made after contracts have been signed can result in significant differences between project bids and project costs.

Circumstances unforeseen prior to the start of a project can have significant negative financial impact on contractors, sub-contractors, and owners. At the DiJulio Law Group, we have an in-depth understanding of complex issues associated with documenting, proving and recovering the costs associated with changes to a contractor’s performance resulting from a variety of factors.

Construction cost overruns

Most construction projects benefit from a modicum of planning, but circumstances occur that cause some projects to go astray which make cost overruns inevitable. Contractors and sub-contractors must stay ahead of the project by acknowledging problems immediately and providing solutions. Informing owners is in the best interests of contractors as well.

A useful process in cost management of a project is to compare the budgeted/estimated project compares with the completed actual project. Reasons for cost overruns can quickly be determined by this method. Once the project is completely finished, and the project costs are paid, a project completion meeting with significant individuals of the project team to discuss what went right and what went wrong is highly recommended.

Our experience includes all types of construction cost overrun claims, such as impact and delay claims, changed conditions or differing site conditions claims, and defective specification claims. We use an well informed, in depth approach in resolving our clients’ disputes.

Construction delay claims

As a construction delays can create major problems and become very costly, the schedule is a critical part of any construction project. Careful scheduling can help protect the interests of contractors and property owners, but there may be unforeseen circumstances or events that give rise to construction delay issues.

These delay issues may cause any number of construction disputes. Effectively managing these disputes often requires seasoned legal judgment. Such judgment comes as a result of having protected the interests of contractors, sub-contractors, and owners with respect to a wide variety of delay-related issue such as weather, concurrent, or owner-caused delays.

DiJulio Law Group
http://www.dijuliolawgroup.com

Evictions from Two Perspectives

Unlawful detainer actions and evictions

Evictions are also referred to as unlawful detainer actions. These actions are the process through which a tenant can be removed from either residential or commercial property for non-payment of rent or other specific reasons defined under California landlord/tenant laws. Whether you are a property owner or a renter, the law provides procedures that guide resolution of eviction cases and protect both tenant’s and client’s rights.

Following Landlord Procedures in Evictions

A landlord can’t begin an eviction lawsuit without first legally terminating the tenancy. This means giving the tenant written notice, as specified in the state’s termination statute. If the tenant doesn’t move (or “reform” in some manner, such as paying the rent or removing the pet from the premises), landlords can then file a lawsuit to evict. Legally, these termination notices are called an unlawful detainer, or UD, lawsuit. Although terminology varies somewhat from state to state, there are typically three types of termination notices used by landlords to terminate a tenancy due to some type of tenant misbehavior. They are: pay rent or quit notices, cure or quit notices, unconditional quit notices.

If the tenant has not done anything wrong, landlords may usually use a 30-Day or 60-Day Notice to Vacate to end a month-to-month tenancy. Cities with rent control may not allow this. They require the landlord to prove a legally recognized reason for eviction (“just cause”) of tenants.

Tenants Rights in Evictions

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use physical measures to force the tenant to move. For example, the landlord cannot remove or change door locks, cut off utilities such as water or electricity, block access to the property, remove the tenant’s property in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.

DiJulio Law Group
http://www.dijuliolawgroup.com