Resolving Disputes over Land or Easements
Disputes over land - concerning where the boundary to land is or over rights to use land - are both common and commonly misunderstood. Most property owners I know have either directly experienced friction with a neighboring owner or recall an incident involving someone improperly using or claiming rights to use their land. These interactions between people can lead to detrimental and lasting consequences unless a resolution between the parties is reached. These interactions can be deeply personal, emotional, and destructive.
Often a dispute involving land develops slowly and over time before reaching a boiling point. However slow, there eventually will arise a need to resolve the dispute. The following guide is intended to help inform such a resolution process. A land owner in dispute has several other options to filing a lawsuit in his or her local superior court. These include:
1) Direct negotiation and settlement between the neighbors. This is the first and best option when it is possible. However, the reality of human nature and complexity of land law may frustrate even good faith attempts by neighbors to resolve their differences. Unlike other interpersonal disputes, disputes over land involve strange and sometimes counter-intuitive laws and principles. Add to this the interest of third parties (most people have lenders involved with their homes and land), factual history (applicable laws may change with the passage of time), and the personal nature of land (a person's identity is frequently tied to their home and curtilage) and land related disputes may be impossible to resolve without outside assistance. A good resource for parties seeking to educate themselves on these types of issues is the book, Neighbor Law by Nolo Press. You can find this book at your local law library or bookstore or online.
2) Neutral Evaluation. In neutral evaluation, a neutral person called an "evaluator", an expert in the field of land law and land boundary determination, reviews the evidence and arguments of each party and the available documents such as deeds, easements, licenses, covenants, etc. The evaluator may then request that missing information be provided such as a chain of title or land survey. The evaluator then gives his or her opinion of the strengths and weaknesses of each party's case and about how the dispute could be resolved. The evaluator's opinion is not binding but is often a good basis for trying to work out a settlement of the dispute. Personally, I enjoy this role the most and find it beneficial for many of my clients. I recommend this option as a starting point for many of the land related disputes in which I am involved. In my opinion, this is probably the most cost-effective use of a party's resources because it goes directly to analyzing the source of the problem and jumping ahead to likely outcomes before risking a lot of time and money in litigation.
3) Mediation. In mediation, a neutral and impartial person called a "mediator" helps both sides communicate and try to reach a solution to their dispute. Mediation leaves the control of the outcome to the parties in the case and in this way is similar to direct negotiation. Think of it as professionally coached negotiation. One downside of this approach is that mediators are often not familiar with land title and property law and this may discourage resolution for the same reasons the owners themselves may have been unable to reach prior agreement.
4) Arbitration. In arbitration, a neutral person called an "arbitrator" hears each side's position and arguments, looks at the evidence from each side, and makes a decision about the dispute. This is similar to a trial, but arbitration is less formal and the rules are more relaxed. Arbitration can be "binding" or "nonbinding." Binding arbitration means that both sides agree to accept the arbitrator's decision as final, whether they like it or not. It also means they waive their right to a trial. Nonbinding arbitration means that if either side is not satisfied with the arbitrator's decision, they can pursue other options such as a trial. While I recommend arbitration in some instances, there are a number of downsides. Unlike superior court, where the judge is paid collectively by the taxpayers, the arbitrator is paid directly by the parties. And because arbitration is similar to a trial, in land dispute matters I recommend that each party be represented by experienced legal counsel although this is not required by law. However, the combined cost of attorneys and arbitrator can result in substantial costs to the parties that may seem imbalanced when compared to the nature of the dispute. (Note that large cash awards are infrequent in land dispute matters and there may or may not be a prior agreement that the losing party pay the attorney's fees of the other party).
For this and more related information, see the California Courts webpage on dispute resolution alternatives at http://www.courts.ca.gov/selfhelp-adr.htm
Finally, it is appropriate to remember and recall the ancient blessing of the Psalms of David, "how good and how pleasant it is when brothers (and neighbors) live in harmony!" It is to this end that we pursue resolutions.