Gary Ginsberg's Danville Real Estate Blog

A tough market

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 11 Aug 2009 16:45:44 -0700

Large investment pools of money and subsidized first time homebuyers are duking it out forcing up prices over market...

Possible special assessment district

Gary Ginsberg (Area Pro Realty NorCal) — Mon, 31 Mar 2008 12:01:26 -0700

I had another meeting with CCCSD over the backyard sewer mains in the Las Lomitas subdivision in Danville CA. This affects 50 homes. I was informed that in response to my efforts the district is contemplating a proposal for a special assessment that would put the sewer main where it belongs..at the street! This was estimated at cost of about 1.1 M $

I believe the cost per owner is negligable compared to the enhancement in value and utility in return. These lots are almost all .25 acres and moving the sewer would enable owners to improve these homes and make them more competitive with surrounding neighborhoods.

Prescriptive easement shows in the record

Gary Ginsberg (Area Pro Realty NorCal) — Mon, 24 Mar 2008 16:49:13 -0700

According to latest on discussed Danville,CA prescriptive easement of backyard sewer main, my source at Landamerica Commonwealth informs me the CCCSD resolution amendment indeed shows in the public record on each of the listed parcel #'s. I have not personally confirmed this but if true my thank you to the responsible parties at CCCSD.

I don't really know if my letter to First American precipitated this chain of events. I do know that the positive results were achieved without lawyers or acrimony. CCCSD acted as a responsible party within the constraints of the situation.

Prescriptive easements are grey area in real estate. No public record usually exists of these easements, even when it's a sewer main in the backyard when most sewer mains are at the street. This amendment in the public record should now inform potential buyers of this very real compromise of property value and utility.

Gary Ginsberg
Realtor
Danville,CA

gary@garyginsberg.com

888 893 8595

Short sales and recourse status

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 26 Feb 2008 10:04:18 -0800

I looked at the web discussions about recourse and non-recourse loans and then opened the textbook. Purchase money loans are non-recourse..even if junior lien. Subsequent loans and refis not protected by anti-deficiency measures.

The big gap in textbook and discussion on web.. 80/20 purchase money scenario that used a credit card type HELOC as the second purchase money loan. Is the HELOC recourse in this situation if the 1st position lender forecloses non-judicially?

My query regaards CA only.

Short sales

Gary Ginsberg (Area Pro Realty NorCal) — Mon, 25 Feb 2008 15:40:52 -0800

Useful rule of thumb..average cost to foreclose 55 to 70 K

Short sale offers of less than average loss more likely accepted.

Offers should stress buyer's committment and patience with short sale process. This may prevail over a higher offer with less committment.

Buyers be advised that banks will likely retain right to have seller accept other offers (offer, not back-up) even after a short sale offer accepted. Bank name isn't on the sales contract.

For those selling short:

A waiver of a security mutually agreed to between the lender and borrower (short seller) to avoid foreclosure may result in a secured debt becoming recourse debt (unsecured).

Original purchase money loans, including junior liens ,are protected from deficiency judgements in a non-judicial foreclosure situation by anti-deficiency laws. Borrowers lose that protection for subsequent loans on the property like second mortgages and refis of the original loan.

Consult expert advice if your a short seller to understand possibilities of future attachment of personal assets and taxation issues.

Buyers,this is a great time in California to buy a short sale property if you plan on living in the residence at least 5 years. Take advantage of historically still low interest rates, possibly far more important than a few thousand dollars in lower price if loan held to term.

Gary Ginsberg

Realtor
888 893 8595

Title co not responsible to report prescriptive sewer main in backyard?

Gary Ginsberg (Area Pro Realty NorCal) — Mon, 18 Feb 2008 14:26:12 -0800

prescriptive easement problem

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 12 Feb 2008 17:20:03 -0800

I have been dealing with a situation that concerns me as a homeowner and Realtor...
The problem: A sewer main in an unconventional location running through the middle of my backyard as well as 50 neighbors.
The Central Contra Costa Sanitary District holds a "prescriptive" easement to maintain the system.
This easement was not revealed on the preliminary title report or TDS at time of sale. In other words undisclosed by owner , realtor, and title co.

The title co maintains that the easement essentially doesn't exist because it is not indexed by the usual grantor/grantee method and easement declaration is not constructive notice.

I am empathetic of both parties positions but would like to point out that leaves potential homeowners in a quandary...who is responsible for disclosing the long term existence of a sewer main in an unconventional location?

I contacted California Asso. of Realtors and the opinion was that the realtor is not held responsible for investigating prescriptive easements not visible to the eye unless a representation is made by the Realtor he will investigate prescriptive easements or if a client has expressed concern about prescriptive easements.

Let's assume the owner didn't know.

The title co is not required to report prescriptive easements not recorded against the individual parcels.

Is it possible for a potential homeowner to buy in Danville unaware of a decades old sewer main in a backyard and title insurance not applicable , CCCSD not liable, and realtor and owner not culpable....???????????????

constructive notice?

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 12 Feb 2008 16:45:24 -0800

letter sent to title co about "easement declaration"

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 12 Feb 2008 16:28:20 -0800

Danville, CA 94526

Issue: Sewer Main

A sewer easement declaration from 1977 against all lots in Los Lomitas subdivision #1 is unreported by First American in a purchase dating Dec 31, 1991. The sewer easement is not placed where permitted by subdivision CC&R 's at perimeter of property, restricts possible present and future utility and desirability of subject property, resulting in a loss. Present owner will be obligated to disclose this fact upon sale. Restrictions placed on building additions, in ground pool, or additional garage space affect market value for present and future owners.

Time line

1991 TDS was filled out by seller and no disclosure was made of sewer main or easement for sewer main through middle of backyard. See exhibit 1.

1991 Preliminary title report issued by First American disclosed public utility easement is at rear and side 2 feet of premises per CC&R's of 1948. Purchase of property finalized 12/31/91. See exhibit 2, 3, 4.

Circa 2000 Plumber puts ear to ground while cleaning lateral and shows owner that sewer lateral from house runs towards backyard. Owners did not understand at that time the lateral was coupled to a sewer pipe maintained by Central Costa Sanitary District (CCCSD) until....

10/14/2005 CCCSD sent letters about impending sewer line work affecting property and requested a meeting. At subsequent meeting representative of CCCSD asked where the sewer lateral was and when shown where plumber( as cited above) identified lateral, they paced off approximately 15 yards east and pointed to the ground and said the issue was actually inability to get a camera past said point. Representative said it was probably due to a lateral connection, and if necessary CCCSD would need to dig a hole to finish assessment. Representative said owner would be responsible for lateral coupling to sewer main if responsible for blockage. Suggested owner get bid from independent contractor and compare to the bid CCCSD's contractor would offer to correct the connection if owner doesn't perform the work. No offer or representation that CCCSD would pay for the correction was made.

Notification letter of 10/14/2005 established first official notification to owner of the existence of sewer main and responsible agency i.e.: CCCSD See exhibit 5

3/30/2006

An independent contractor was contacted; videoed lateral and investigated & discovered the 2^nd lateral, which was speculated by CCCSD upon their visit as mentioned above. When 2^nd lateral was exposed, it was found to be constituted of Orangeburg (tar paper) pipe. This pipe was assumed to date from conversion of a breezeway to a bedroom with bathroom long before current owner. Contractor assessed it as decades old. This bathroom was connected not to pre-existing plumbing but via second lateral to the sewer main in unconventional fashion and protruded slightly into sewer main. Owner's contractor offers to replace both laterals for total of $4100. A decision was made to proceed since CCCSD had represented the issue as a problem that was responsibility of owner. There was no contact from CCCSD and scope of work to be performed as well as fee was unknown. Required cement work to repair trenching incurred during lateral replacements added to the contractor's initial bid increasing the cost. See exhibit #6

July 14, 2006, letter from CCCSD informed owners that a contractor was retained by CCCSD and would contact owner. Owner contacted CCCSD on receipt of letter to inform them that work was done. Several weeks later, contractor arrived at subject property and was visibly angry when informed work was already performed. The contractor tells owner that CCCSD was going to pay for all work at no charge to owner. Owner contacted CCCSD again by phone immediately and informed representative that work was already done. She inquired whether work permit was issued by CCCSD - an affirmative was given. Owner made verbal request at that time to see if there would be remuneration as contractor stated that CCCSD would incur all costs, but that was declined. In fact, there was no work done by CCCSD on this property at any time.

9/07 Owners decide to market the home and preliminary title report upon review shows no sewer easement other than original CC&R limitations. Owner at that point inquired of current title company on accuracy of title report leading to question of report of easement on original title report from First American Title in 1991. Owners decided to ask neighbors about the sewer main. Upon inquiry, one neighbor informs owner the sewer easement was recorded against all the lots of the subdivision in the 70's and not recorded against each individual lot. See exhibit 7, 8.

11/07 First American was contacted with a claim by owner of subject property. This is because owner has demonstrable loss from sewer easement that is well known from 1955 and certainly from 1977 on.

The loss incurred is due to a building restriction of 7.5' on either side of the sewer main per CCCSD. This severely limits any expansion of the home through additions on the north side, precludes an in-ground pool, or additional garage space to enhance the present 1 car garage. The desirability of the home is diminished because the great majority of homes in the area have sewers at the street, not in the backyard, and present owner is obligated to disclose this material fact. See exhibit 9, 10, 11.

The 1977 easement declaration, if known by owners before approach by CCCSD to initiate work on lateral connection, may have resulted in a different outcome of owner bearing expense of replacement.

Summation:

CCCSD requires 15 feet of clearance for easement of total running length of sewer main through unrestricted portions of back yard
Enhancement of said property such as expansion of one-car garage, addition of in-ground pool or building addition is severely diminished and comparable homes in the area are undergoing expansion without like restrictions

That the sewer main was undisclosed at time of purchase by owner and title company

The sewer main is not located per requirements of CC&R's

That sewer pipe restricts desirable property enhancements

These are recently discovered facts from investigation begun after receipt of preliminary report from Land America Commonwealth dated 9/07. See exhibit #8.

Note: Amended preliminary title # 2 includes copies of ALTA/CLTA title policies.

map showing backyard sewer mains in las lomitas

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 12 Feb 2008 16:23:18 -0800

picture worth a thousand words...

Gary Ginsberg (Area Pro Realty NorCal) — Tue, 12 Feb 2008 15:45:02 -0800

here's the resolution that was voted in

Gary Ginsberg (Area Pro Realty NorCal) — Fri, 08 Feb 2008 17:02:53 -0800

Meeting at CCCSD about backyard sewer main

Gary Ginsberg (Area Pro Realty NorCal) — Fri, 08 Feb 2008 13:54:24 -0800

I attended the 2/7/08 meeting of the CCCSD and was surprised I was the only resident of the Las Lomitas subdivision present out of 50 homeowners. The resolution amendment was introduced as needed to rectify the problem of original 1977 resolution ...meant to further constructive notice of backyard sewer main...

I registered to speak and upon being called read the opinion of the chief title officer of Landamerica Commonwealth that the resolution amendment is not constuctive notice as no rights are granted by individual owners....

I personally believe every homeowner or potential homeowner,realtor and title officer should show an interest because the issue is that a title co is stating they have no legal responsibility to disclose a recorded notice regaarding an unobservable sewer main in an unconventional location.

This "presciptive" easement affects 10% of the lot. The CCCSD imposes a restriction on building or excavation within a minimum of 5 feet on either side of the main...so 10 feet times 100ft (length of the lot) of a .25 acre lot is a loss of 10% of utility and control to CCCSD.

CCCSD maintains original "easement declaration" is "constructive" notice and title cos are arguing they have no obligation to report "prescriptive" easements.

My research of prescriptive easements are that they were created to absolve govermental agencies who "inherit" easements of possible previous liabilities. No ownership is transferred.

Potential homeowners rely on title cos to research and report recorded material facts affecting property values and usage. Most homeowners or potential homeowners want to know the recorded material facts affecting residential properties.

Arguably a sewer main running the length of 100' through the middle of a backyard with imposed restrictions should be on a preliminary title report without exception.

CCCSD is in a predicament because the original developer had no rights granted to place the sewer in it's present location.

So....does an agency that takes over a ungranted easement have a right to maintain the easement and impose restrictions without compensation to the homeowners...?

Real estate agents...your notified...expect to be blamed if this sewer is undisclosed...it is arguable that if you are an area real estate agent you should know of this issue..after all its been there at least from 1955...

Tiltle cos who don't report it have an army of attorneys willing to argue whether notice is constructive.

Everyone including title people should be concerned. If title insurance doesn't cover the non-disclosure of a restriction on land use of 10 % of a residential lot due to sewer easement than what good does it do any of us?

Call 888 893 8595 toll free and reach me directly or visit my website at http://www.94526homes.com/

Here's the opinion of a chief title officer about the resolution

Gary Ginsberg (Area Pro Realty NorCal) — Thu, 07 Feb 2008 13:30:59 -0800

"This resolution really won't change anything. It doesn't create any easement as nothing is granted by the property owners. Since the owners haven't executed the document it can't be indexed to them and therefore there is no constructive notice. Since the Resolution describes only the specific lots that are affected, it will be posted to those properties, only, in the title plant. As with the original Resolution, many examiners will not pick up the Resolution, but competent examiners will pick it up and show the effect of the document in some way."

Asst. Vice President/Chief Title Officer

Call 888 893 8595 toll free and reach me directly or visit my website at http://www.94526homes.com/

Las lomitas meeting on backyard sewer lines...

Gary Ginsberg (Area Pro Realty NorCal) — Wed, 30 Jan 2008 16:57:57 -0800

Real estate Danville, Realtor Danville, Danville Homes for sale

Gary Ginsberg (Area Pro Realty NorCal) — Fri, 11 Jan 2008 13:33:42 -0800

Real estate Danville, Realtor Danville, Danville Homes for sale

Prescriptive easements not on title reports

Prescriptive easements in the Las Lomitas subdivision in Danville,CA? A storm channel runs through dozens of lots....and the significant space occupied by the channel came out of the lots...title reports don't show this prescriptive easement because it is not recorded in Contra Costa county records.The Town of Danville maintains it but doesn't "own" it ...the map showing the channel's course through the lots is inaccurate and "for city use only"

Well, if that isn't enough...some of theses same homes have a 6" sewer main running smack down the middle of their backyards parralel to the storm channel...these homes originally were hooked to septic and then in 1955 hooked up to surrounding mains. The contractor put the sewer down the middle of the backyards when the subdivision was built iin 1948. The Central Contra Costa Sanitation District has a prescriptive easement against all lots in Las Lomitas subdivision 1 that was recorded with Contra Costa county in 1977 but again doesn't cite individual parcel owners ...result...this backyard sewer is not reported on most title reports.... if the owner doesn't disclose and the real estate agent isn't familiar with Las Lomitas subdivision in Danville a buyer will get surprised by a sizable piece of their lot "gone" to the storm channel and a restriction on building within 7.5 feet on either side of the sewer main in the backyard...that's right...no in ground pool etc....

Danville and Contra Costa county are well aware of these prescriptive easements...and title companies are only responsible for reporting easements recorded against the property....so if buying in Danville,CA visit the city offices and ask the selling realtor the right questions before preceeding....and if concerned get professional advice. Call 888 893 8595 toll free and reach me directly or visit my website at www.94526homes.com

Gary Ginsberg