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Q The road we live on is ridden with potholes. It is a private roadway where each of the users has an easement and ownership of the road. Our neighbors refuse to contribute toward the repair of the road. I am tired of living in a rut. What can I do?

A First, you should check your grant of easement to see if there is an agreement between the easement holders with regards to road maintenance and repair. This is common with more recent subdivisions. If there is an agreement then this is an enforceable contract and you may legally take action against your neighbor based on the contract to fix the road and pay for repairs.

However, if there is not a road-maintenance agreement then you are subject to California Civil Code section 845, which requires all owners of easements that include a private road to maintain the easement area and pay for repairs. If any easement holder refuses to pay for repairs then other owners may petition the Superior Court in the County to enter a judgment against the non-paying easement holder for the amount that is owned.

Politically, it is a difficult decision to legally confront neighbors with this type of issue. Rationally, you would think that all owners would want to maintain the roadway in good repair. However, in the real world there are unreasonable people who do not want to pay for anything without being forced. Where the tipping point is, is up to you.

Q A developer has purchased the lot next door to me. I am worried about what my new neighbor will develop. Can the new structure block my view, my sunlight and interfere with my privacy?

A Your concerns are quite real. Development of real property is controlled almost exclusively by the zoning ordinance of the town the property is located in. Occasionally, there are deed restrictions, sometimes referred to as CC&Rs, which may restrict an owner's ability to develop the property. Both of these should be examined to determine what the developer has to do in order to get the new development approved.

Zoning law will usually specify a formula for the total square footage that can cover the lot, often called FAR (floor area ratio), along with the maximum developable area (MDA), which includes driveways, pools, accessory structures and the like. Due to the high price of land and typically smaller lots in the Bay Area, developers seek to maximize the FAR and MDA on any given project. This is done because whoever will eventually purchase the home will do so mostly based on the square footage and improvements built on the land.

Some cities also have what is known as "design review." This may give the city planning department and neighbors the opportunity to shape the project within the limits of the design-review ordinance. Often those who are on the design-review committee try to make sure the new development fits within the neighborhood and does not unduly impact the privacy of neighboring landowners. If your neighbor is subject to design review then you should get written notice and you should definitely make your concerns known to whoever is doing the architectural review.

All modern zoning ordinances have provisions that limit MDA and FAR; in addition they will also have provisions to protect your home from a daylight-plane intrusion from the new building through height limitations and setback requirements.

Planning departments often require the developer to obtain a survey of lot lines. It is important for you to review these survey documents or obtain your own boundary survey to make sure the new building is following the appropriate rules with regards to setbacks.

Typically, it is good form for developers to reach out to neighbors to hear their concerns about the future plan. Many times such concerns can be addressed without compromising the objectives of the builder. If the developer is not reaching out to you, then I suggest you try and meet with him/her so that they have an understanding of your concerns.

Realize that you cannot prevent change to your neighborhood; the owner has generally paid a high price for the land and has a legal right to develop the property within the law. The law gives neighbors protection and at times meaningful input. Don't waste your opportunity by merely obstructive tactics, as you will likely win a battle or two but lose the war.

Q I have seen listings for properties that seem almost too good to be true, then I discover they are in foreclosure or short sales. Are sellers and lenders really allowing these properties to sell at significant discounts?

A In general the market has improved throughout the Bay Area but particularly in the San Francisco to San Jose corridor. It is generally not in the interest of the seller or the lender to agree to sell for less than the market value. Often the difficult part is determining what the market value really is.

Simply because it is a distress sale does not mean that the property will sell at a below-market price. Often, sellers are not really attempting to sell at all in these circumstances. They list the home to satisfy the terms of trying to do a short sale so that the lender forebears foreclosure proceedings. Even if a house is listed for sale it may not, in fact, be for sale.

In other words, the seller may be doing everything to forestall foreclosure, but has no intention of ever leaving the home. If the owner is not making payments or paying property taxes, there may be little motivation to accept and offer and then have to move out and pay rent. That is why these transactions often end up in what seems to be an endless loop, at least until the lender carries through with the foreclosure. A recent listing in Palo Alto that seemed like a steal was actually a home in foreclosure where the seller was trying to sell a reversion and retain a life estate in the property. If it seems like it is too good to be true, beware and make sure you have knowledgeable counsel to help you understand the market and provide you with current market information as to valuation.

J. Robert Taylor, J.D., a real estate attorney and broker for more than 20 years, has served as an expert witness and mediator and is on the judicial arbitration panel for Santa Clara County Superior Court. Send questions to Taylor c/o Palo Alto Weekly, P.O. Box 1610, Palo Alto, CA, or via email at btaylor@taylorproperties.com.

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