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HomeMy WebLinkAboutM2004-0063Aluminum Precision Products, Inc. 3333 W. Warner Ave., Santa Ana, CA 92704 Tel(714)546-8125 Fax(714)850-5917 E-mail: pkeeler@aluminumprecision.com Cover Sheet Date: October 25, 2004 From: Philip S. Keeler Re: I Balboa Coves _.-Newport Beach, CA 92663 CC: Pete Compton (Hand Delivered) CC: Richard Forterville (Hand Delivered)_ CC: Balboa Coves Communi!y Association (Via Mail) The Emmons Compag-Profesional Management Association 17300 Redhill Avenue Suite#210 Irvine, CA 92614 CC: Steve Osterman (Via Mail) .4425 W. Coast HM. Newport Beach, CA 92663 CC: Aftn: Captain Russell .(Via Mail) Newport Habor/Harbor Master 1901 Baysid6 Drive CoronaDel Mar, CA 92625 Keeler 1 Balboa Coves Newport Beach, CA 92663 949-631-2911 September 13, 2004 Mr. Donald Okada P.O. Box 3208 Huntington Beach, CA 92605 2 Balboa Coves Newport Beach, CA 92663 Dear Mr. Okada - As you may know, I am your neighbor located at I Balboa Coves. I was hoping to get a chance to speak to you in person, but with both of our schedules, it appears that may not happen soon. I noticed that your house is for sale, and because of that, I wanted to clarify a few things about our docks where it appears there might be, some confusion. I was informed that the listing for your house at 2 Balboa Coves indicated that you have a dock available for two boats, up to 38'. 1 also saw that your real estate agent's website states that you have a dock for two boats. I hope that this is just an error that your real estate agent has made. As I am sure you know from looking at the tract map and a survey of our properties, your dock only has room for one boat. One side of your dock is immediately adjacent to our property line, apd there is no room for you to have a boat on that side. As a neighborly accommodation, I had allowed the Dickersons, the previous owners of your house, to keep a boat on our side of the property line (the Duffy boat that is still located there). About two years ago, I informed the Dickersons that I was planning on acquiring another boat and that I would need them to remove the boat that was encroach* 9 on my property. However, prior to the sale of the house, they had not yet moved the Duffy. At this point, I do need to have that boat moved so that I can dock my boats properly within my property lines. Also, under the City of Newport Beach Harbor Pier permit policy and the rules of the Balboa Coves Community Association, it appears impossible that you could dock a 381 foot boat or extend your pier. I hope the reference to this in your listing was also an error on your real estate agent's part. Obviously, to extend a pier you would need to get all required approvals, too (for example, the Harbor Department, Balboa Coves Homeowner's Association, Coastal Commission, etc.) At this point, because you are trying to sell the house, I want to make sure there is no confusion about this issue, so that any buyer will not be misled about the number or size of boats that can be docked. I trust you will make sure your real estate agent corrects this information. Also, I must ask you to move the Duffy boat that is located on my side of the property line. Although I would like to continue to be a good neighbor, I have been told I may have to take legal action to protect my rights. I have no desire to do that, and would much prefer a friendly solution. My wife Audrey and I will be traveling outside the country until early October. If you would like to discuss these issues, please contact Gregory Keeler or Roark Keeler, my two eldest sons, at 714-546-8125. If you want to see maps or a detailed survey, either of my sons can get them for you in my absence. Enclosed is an aerial photograph of the area with the property lines indicated in white. Sincerely, Yffiip . Keeler Copies to: Mark Whitehead, FashionlslgndRealty.com (via e-mail) Pete Compton, President, Board of Directors — Balboa Coves Balboa Coves Community Association — The Emmons Company Newport Harbor — Harbor Master, attention of Captain Russell ROBERT J. WALLING ATTO R N EY AT LAW CERTIFIED TAXATION SPECIALIST 4750 VON KARMAN AVENUE THE STATE BAR OF CALIFORNIA NEWPORT BEACH, CALIFORNIA 92660 BOARD OF LEGAL SPECIALIZATION October 12, 2004 VIA MML Philip S. Keeler I Balboa Coves Newport Beach, California 92663 Re: Boat Dock at 2 Balboa Coves, Newport Beach Dear Mr. Keeler:. PHONE (949) 752-0746 FACSIMILE (949) 757-8157 e-mail: PURESANDOAOL.COM Please be advised that this office represents Mr. Donald Okada, owner of the property located at 2 Balboa Coves, Newport.Beach. As Mr. Okada's personal and real estate attorney, I handle all such matters as part of Mr. Okada's ordinary business. Therefore, I am responding to your letter of September 13. concerning the boat dock located in the waterway portion of that real property. This boat dock has two sides, one side of which faces your property located at I Balboa Coves. That side of the 2 Balboa Cove boat dock is in issue. To summarize the history of this matter, the Dickersons, the previous owners of 2 Balboa Coves, ��0-4.n- Lie - of th -es f rn r - .11IA.,1()USjy ker, a boat on th side .1. 1 e dock faciing I Balboa Ce,,. - or . a y years, (exceeding five years), even preceding your ownership of 1 Balboa Coves. During this time, the "Duffy" boat may have extended into your property by approximately 7 feet. When Mr. Okada purchased 2 Balboa Coves, he continued to park the Duffy boat in the same manner so that it extended over the property line. In fact, it was Mr. Okada's understanding that there was a prescriptive easement into I Balboa Coves for this purpose. The Duffy boat was docked at 2 Balboa Coves in this manner without the express consent of either the former owners of 1 Balboa Coves, or you. Inasmuch, as -the. extension of the Duffy boat across the I Balboa Coves property line has been continuous for a period ofmore than five years, was done in. a manner that was open,. notorious, and clearly visible to the owners of I Balboa Coves, and was docked there without the consent of the owner of. 1 Balboa Coves, Mr. Okada claims an easement by prescription over that portion of 1 Philip S. Keeler October 12, 2004 Page 2 Balboa Coves into which the Duffy boat extends. A new boat dock will be shaped as to allow easier access for two boats on that side. We understand that you may have a different position in this matter. Of course, the court system was conceived for disputes as these. Therefore, we suggest that litigation may be the best course to resolve this issue. Whereas litigation can cause hard feelings between the parties, we view this as abusiness dispute that should be resolved amicably, without personal emotions. If you agree, then we should letthe courts decide this in litigation, the costs of litigation being a necessary business expense. It is our intention to file a claim promptly. However, as an accommodation, we will delay our filing pending a response from you. PS' cerelly, t�� J. W., o cert J. alling RJW/nfl cc: Mr. Donald Okada (via telecopier) 10/26/04 08:37 FAX 949 851 1212 PAYNE & FEARS LLP PAYNE & FEARSLLP October 25, 2004 VIA FACSIMLLE (949) 75 7-815 7 A 'Robert J. Walling Attorney at Law 4750. Von Karman Avenue Newport Beach, California 92660 Re: I Balboa Coves Dear Mr. Walling: Q002 RICHARD K. ZEPFEL 949-797-1274 rkL@paynefears.com File No. 2729.001 This law fxm represents Mr. and Mrs. Phibp Keeler, the owners of 1 Balboa Coves in Newport Beach. The Keelers forwarded to me your letter dated October 12, 2004, and asked me to respon& Your letter asserts that Mr. Okada, the new owner of 2 Balboa Coves, has a prescriptive casement over a portion of the KeeleTs'property, This assertion is wrong. P er. aps -d h your client has not been entirely forthcon ug in telling you all of the facts regarding t1gs matter. In faimess, given Mr. OkadaIs extremely short tenure at the property, his 'aillire to occupy the property, and the fact that he listed the property for sale within apparent f weeks of his purchase of the property, he may not have had the opportunity or the motivation to investigate the true situation. The elements of a prescriptive easement are straightforward. Your client's claim of prescriptive easement fails to meet several of these elements. his letter to Mr. Okada dated September 13, 2004, Ik&. First, as Mr- Keeler made clear M Keeler ext)ress1v consented to the use by the prior owners of 2 Balboa Coves (the DickenSo-hQ) nf n nrt;nin nf fh,% Vc-. invel Arftr fnT fl,12. twi-c nfAnt-Itin q hn:if T-nAF-F-.d IRVINE Jamboree CenTer 4 Nrk Plan Suite 1100 Irvine, CA 92614 Mr- Keeler and the Dickensons had an express uriderstanding that the Dickensons could use T 949.051.1100 Jhat space, as a neighborly accommodation, until the Keelers acquired a second boat alad F 949.0.9M212 needed the space. Indeed, the Dickensons and the Keelers occasionally moved each other's boats in and out of this lacaflori, once again, as a neighborly accommodation and Los AN09LES underscoring that the use of the property was with the Keelers' consent. Los Angeles, CA 90017 WWW.PA'YNrzfeEARS.COM 10/26/04 08:37 FAX 949 851 1212 PAYNE & FEARS LLP Robert j. walling October 25, 2004 Page 3 have advised your client that initiating litigation over his property rights can make property difficult to market and sell. Finally, I assume that you have also advised your clients that if you are incorrect about your conclasion that your client has a prescriptive easement, your client is guilty of a trespass, and the Keelers will be entitled to recover damages. The Keelers hereby demand that IW. Okada expressly repudiate any claim of a prescriptive easeineut over their property, remove any and all boats from the Ke-elers'pToperty (including, without limitation, the Duffy that is presently there with Mr. Okada!s consent), execute a quitclaim deed in such regard, and immediately correct all adverfising and listings regarding the property. Notwithstanding the foregoing, my clients are not waiving any tights they may have, and they intend to take appropriate legal action regarding this matter. Very truly yours, Richard K- Zepfel PAYNE & FEARS LLP RKZ:cac cc: Philip Keeler 261242.1 [a 004 Real Estate News Steal real estate, avoid jail time 'State laws encourage legal theft' Ffiday, June 18, 2004 By Robert J. Bruss Inman News Have you ever noticed an abandoned neighborhood property you would like to own? Or would you like to use part of your neighbors property, perhaps for a path or driveway? Today's real estate lesson is "How to Legally Steal Real Estate Without Going to Jail." To pass this course, you must comply with the tough rules for stealing all or part of a property. Purchase Bob Bruss repo online. STATE LAWS ENCOURAGE LEGAL THEFT OF REAL ESTATE. After most states adopted English common law in the 1800s and early 1900s (except Louisiana, which still follows the French Napoleonic Code), stealing real estate became legal. Often called "squatter's rights," there are two major ways to acquire all or part of a property belonging to someone else. However, if you don't meet the state statute requirements, you could become liable for trespass damages to the rightful property owner. Neither of the two methods to be explained can be used for property owned by any government agency or a public utility, including railroads. The purposes of these common law rights are primarily (1) keep property in use. rather than idle, and perhaps more important (2) keep property taxes coming in to the state for each parcel. I—STEAL PARTIAL USE OF A PROPERTY WITH A PRESCRIPTIVE EASEMENT. If you just want to use part of a property, perhaps for a path or driveway, or maybe to plant your garden (presuming the legal owner won't approve your use), you might become entitled to a permanent prescriptive easement. To acquire permanent use of part of another's real estate, you must meet the requirements of open, notorious (that means obvious), continuous and hostile use (without permission) for the required number of years in the state where the property is located. But your prescriptive easement need not be exclusive as it can be shared with either the legal property owner and/or other prescriptive easement users. A major advantage of a prescriptive easement is it does not require payment of the property taxes. In other words, a prescriptive easement is completely free if you meet the legal requirements for the minimum number of years in your state. To make your prescriptive easement permanent, you must sue the legal owner in a quiet title lawsuit after you meet the requirements. Most prescriptive easements arise on rural land where the legal owner doesn't realize someone is using part of his property without permission. An example is walking or driving over your neighbor's property without permission for the required number of years. To prevent someone from gaining a permanent prescriptive easement over your property, there are two primary methods: (a) at least temporarily block the hostile use, such as by erecting a fence to break the continuous use, or (b) sue the trespasser for an injunction to stop the non - permitted use. For example, when I was a summer student at Stanford Law School, one Sunday morning I wanted to drive into nearby Palo Alto. But my short trip was detoured by police who blocked off my usual route with a street barricade. The police officer politely explained that every summer Stanford blocks its private roads for a few hours to prevent anyone from acquiring a permanent prescriptive easement. 2—STEAL FULL PROPERTY USE BY GAINING know somebody is using part or all of your property, but you don't mind, you can easily prevent that hostile user from gaining either a prescriptive easement or title by adverse possession. The simple solution is to grant permission to the hostile user. But be sure to document your permissive use. Perhaps you have noticed posted signs or plaques imbedded in sidewalks such as "Permission to pass over this property is revocable at any time." After consultation with a local real estate attorney, you might also want to record such permissive use, if allowed by state law. WHEN REAL ESTATE THEFT IS MOST LIKELY TO OCCUR. Every year thousands of property owners die without close relatives. Many homeless people die and nobody knows if they owned any real estate. The abandoned properties owned by these decedents are relatively easy for squatters to move into and eventually gain legal title. Also, many rural properties are owned by distant owners who fail to periodically inspect their. realty which might be occupied by adverse possessors. Even if you have a will or a living trust, to prevent adverse possession be sure your relatives, friends, and charity beneficiaries know what real estate you own, SUMMARY. Prescriptive easements and adverse possession can lead to legal theft of partial use or full legal title. State laws allowing these legal methods of stealing real estate are intended to keep property in productive use with the property taxes paid. For full details, please consult a local real estate attorney where the property is located. (For more information on Bob Bruss publications, visit his E WORKSHEET FOR BUILDING / FIRE PERMIT APPLICATION CITY OF NEWPORT BEACH PLEASE PRINT OR TYPE BUILDING DEPARTMENT 1. PROJECT ADDRESS (NOT MAI GADDRESS) FLOOR SUITE NO. LEGAL DESCRIPTION No. UNITS LOT BLOCK TRACT 2. DESCRIPTION OF WORK N EW F-1 ADD F� )WW-� Check Appropriate Box ALTER F-� DEMO F-1 �A�Nl # OF STORIES 2� VALUATION SQ FT (NEW/ADDED/EXTG) 3. OWNER'S NAME LAST /0//FIR,9T/ OWNER'S ADDRESS OWNER'S E-MAIL ADDRESS Y STATE ZIP CA— -7 -c->- " PHONEr 3 / _ I / ?I F-� 4. ARCH ITECT/DES IG NER'S NAME LAST FIRST LIC. NO. ARCH ITECT/DESIGNER'S ADDRESS ARCH ITECT/DESIGNER'S E-MAIL ADDRESS CITY STATE ZIP PHONE NO. F-] 5. ENGINEER'S NAME LAST FIRST STATE LIC. NO. ENGINEER'S ADDRESS ENGINEER'S E-MAIL ADDRESS CITY STATE ZIP PHONE NO. R 6. CONTRAM5'S N4r_71, BUSINESS LIC. STATE LIC. No. Class CONTRACTOR'S ADDRESS CONTRACTOR'S E-MAIL ADDRESS CITY STjZ�� ( *� � I PHOZN,(]�/ OFFICE USE ONLY PERMIT.NO. TYPE OF CONSTRUCTION PLAN CHECK NO. PLAIN CHECK FEE $ LOCCUPANCY- GROUP PLAN CHECK ENG. no Co ZO 4V =O'er Az - 16 -44 N F_ vv PO PT Flo 10 20 SO clG,-;�Ote - . poomm" 4;JCAP.4)C S4AJLE 114 FarT Or1VL-;-VG01-;O UXI P7, 4Y.1<7HWAY7 -Simi T- 7 , 46. \nk A A!�V 24.. 7RAc7 3i3 10 Jls� -A _/V,.lg �44 Jl1X zo a. �Chl BUYERS'-NAME(S) AD jp k i MAILING�AnqREsS BY - 46 OCHD ENG El SELL C06961L El, PUBLIC WORKSE] DEPIr. UF THE MUNICIPAL CODE. CITY OF NEWPORT BEACH, CALIF. BUYERS' NAME(S)' j I I " WX FORM 66-1013 REV. CITY OF NEWPORT BEACH, CALIF. Shong.ri-La SINGAPORE April 5,.1990 We closed escrow on January 12, 19s�,O. The previous owner was Robert A. Flax.man. He owned -the property onl.y a few mont-hs -be f or.- a - se I in 9 to us. Thank yo -u, MIM Ph i / ip S. Kee er #1 Balboa Coves Newport Beach 92663 Mailing Address: 2242 Liane Lane Sant ' a Ana, CA 92505 Tele: 7141731-1518. Orange Grove Road, Singapore 1025. Tel: 7373644 Date Application,'Rep r.�,_ Date Fee.Rec'v: L Oral Request for -Inspection' 2-- 12- Lr -Z, cz- Date Escrow Escrow :Offi cev*z Escrow Date inspection Made Date. Deficiency Letter Sent (if appli cable) Date Deficiency Corrected (if applicable) Date Orange County Notified (if applicable) Date Transfer Completed 1. Location: 2. 3. 4. Structural: REMRKS: Inspector's Initials OF r) CITY OF NEWPORT BEACH P.O. BOX 1768, NEWPORT BEACH, CA 92659-1768 March 21, 1990 Each year the City of Newport Beach sends statements to the holders of pier permits in Newport Harbor notifying them that the annual pier permit fee is due. Two statements have gone to this address and have been returned. We conclude, therefore, that the permitee is not the person or entity shown in our records. The City Council Harbor Permit Policies state: 10. "Permits for harbor structures are issued subject to the condition that any improvements constructed shall not be sold in whole or part, leased, or transferred, without the written consent of the City"., and 4.C. "The permit is not transferrable without the written consent of the City of Newport Beach". 10.D. "At the time of transfer, all harbor structures shall be inspected for compliance with the City's minimum plumbing, electrical and structural requirements, and the conditions of the existing permit. All structural deficiencies must be corrected prior to transfer of the permit." We enclose "Instructions for Pier Permit Transfer". Please contact the Marine Department for further advice on transferring the permit for a pier, if such be necessary. If we need only make an address change, please inform us of the correct address to use. We call attention to the enclosed statement from the Finance Department of the City. If you have questions, please call 644-3044. Sincerely, Tony Me�L Tidelands Administrator 3300 Newport Boulevard, Newport Beach � 4. Structural: -04 TATU S S SHEET AARBOR' PERMITS � 4. Structural: P CITY OF NEWPORT BEACH 0 P.O. BOX 1768, NEWPORT BEACH, CA 92658-8915 June 22, 1989 Spring Mountain Escrow P0 Box 9769 Newport Beachr Ca 92658 Attn: Linden Sirs: The City of Newport Beach has received an application to transfer Pier Permit 1011-1 for the property located at 1 Balboa Coves, Newport Beach. The structure was inspected on June 20, 1989, at which time it was determined that it conforms to City standards. When we have received the pier transfer card, signed by both the previous owner and the new ownerr and the $260 transfer fee, we will transfer the pier permit. Sincerely, 1-0.0 "' -.- j -".)% .- �46 Tony M M, Tidelands Administrator 3300 Newport Boulevard, Newport Beach A PERMIT NO. DREDGING APPLICATION Project Location: 67 Balboa Coves Cubic Yards to be Dredged: 266 Method of Dredging: Hydraulic Suction Nature of Dredged Material: Sand/Silt Disposition of Dredged Material:Place material on adjacent beach Method of Material Disposition: PMp through discharge pipe to disposal fill area Turbidity Control Method: Filter screen around dischar�e site, if needed. Effect of dredging on contiguous bulkheading and beaches Will restore depleted beach It LaVgrag Harris hereby state that I have read the U. S. Army (print name) Corps of Engineers permit for maintenance dredging in Newport Harbor, the City of Newport Beach and orange County Harbors,Beaches and Parks District (if applicable) permit for maintenance dredging and that I accept all the provisions therein. Additionally I guarantee that the proposed dredging will not occur because of any altering of existing use of the affected zone. Bill McLaughlin Newport Dredging Co. �Applicant-t-ype name) (Cont-ractor-type name) 7/12/83 (Date) Signed: Contractor's Representative / a//- (o %v CITY OF NEWPORT BEACH HARBOR PERMIT PERMISSION IS HEREBY GRANTED TO CONSTRUCT ANE MAINTAIN THE FACILITY SHOWN ON THE REVFRSE HEREOF AT THE SITE INDiCATED, SUBJECT TO THE PROViSIONS 0 - THE HARBOR PERMIT POLICIES OF NEWPORT BEACH ANr ANY SPECIAL CONDiTIONS LISTED HEREON. T141S PERNII IS NOT TRANSFERABLE WITHOUT THE WRITTEN CONSENT 0: THE CITY HAR13OR coonai?A,,Arop OR CITY COUNCIL. TH RIGHTS GZVEN kli.4MITH THIS PERMET ARE PERMISSIVE ONL, AND THIS PERMIT MAt BE REVOKED BY THE CITY COUNCIL IN ACCORDANCE WIT14 1ITLE I OjETHE FAUNI-CIPAL CODE. �z �aftt4 I v I (- G -7 k-6--7-7 NO, SPECIAL CONDITIONS: CO'Ps Of Engineers Permit Orange County Peirmit Other S_ c 2- -*& -f e- PERAIrr ISSUE,) SUBJECr To DF?SD(3S k'A",'LFD To 'PMCEI) On -E- /o/-/- H 7P MY OF NEWPORT 13EACH HARBOR PERMIT r'ERMISSION IS HEREBY GRANTED TO CONSTRUCT ANr MAINTAIN THE FACILITY SHOWN ON THE REVERSE HEREOF AT THE SITE INDICATED, SUSIECT TO THE. PROViSIONS 0? rHE HARBOR PER.4�11T POLFC�'ES OF NEWPORT REAC - H AN( ANY SPECIAL CONDITIGNS L�-STED HEREON. THIS PERM !S NOT TPANSFERABLE WITHOUT'rHE WR!TTEN CONSENTIC' CITY HARBOR OR CITY COUNC;L. TL-! GiVEN UNDER THIS PERFAIT r -%RE PERMISSIV2 ORL ':tlS PERMIT MAY BE REVOKED BY THE CITY COUNCi W;TJH TITLE 17 OF THE MUNICIPAL CODE. JaWRAROJOR COORDINATOR 0 (1— %7 SPECIAL CONDITIONS: Corps Of Engineers Permit Orange County Pe'rMit Other Se- /Z PERMIT ISSUED SUBJECT TO PREDGE MATERIAL BEING HAULED TO SEA. - PLACED ON BEACH 24& vc4 -T-- sa A wq i.,L '14 /vow, 41A;f -44 4� VICINITY SKETCH 0�9--",6s below C�,� IN PEET ox/ -e All ry 14 VIA 24,7 Z. a la zo To 40 so 24.. OR4PNIC SCAL�C 4--+ Vt. lo TleA c 7 10 A IV 6 5ho A13 �-i g 4, qJ AlF. 72'ah A A /Vie