In 1960, Bryant Myers recorded a declaration of protective covenants and restrictions for his Meadowlark Ranches property. Parcel One describes a 60-foot-wide roadway throughout the private development.

In 1986, Sylvan L. Kapner bought a five-acre lot in Meadowlark Ranches from Myers. Kapner built his house, driveway, gate and perimeter fence.

Purchase Bob Bruss reports online.

In 2001, the Meadowlark Ranch Association, which controls the common areas within the development, surveyed the ranch’s private roadway. The survey determined Kapner’s improvements encroach on the 60-foot-wide roadway parcel that is owned by all the owner-members of the association.

Rather than sign an encroachment agreement, Kapner sued the association for declaratory relief and quiet title so he could retain the encroachment. The association sought an injunction against Kapner’s encroachment.

If you were the judge would you allow Kapner to retain his encroachment on part of the roadway area owned by the homeowner’s association?

The judge said no!

Because all the Meadowlark Ranch homeowners hold title to the private roadway, the judge began, they have a common right to possess the entire roadway.

Kapner has clearly encroached on this recorded private roadway, the judge continued. But he did not acquire any title by adverse possession because he did not pay the property taxes for the common roadway, the judge emphasized.

Nor does Kapner have a prescriptive easement to use part of the roadway because he has not enclosed it, the judge noted. Although the association is willing to let Kapner’s improvements remain within part of the roadway area if he signs an encroachment agreement, because he refuses to do so, Kapner is ordered to remove his encroachment from the roadway area, the judge ruled.

Based on the 2004 California Court of Appeal decision in Kapner v. Meadowlark Ranch Association, 11 Cal.Rptr.3d 138.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

What’s your opinion? Send your Letter to the Editor to newsroom@inman.com.

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