Legal Question in Real Estate Law in California

Does 5+ years of use on a road easement continue when property is sold that is using the road to access home?


Asked on 4/01/11, 11:29 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

If I understand the question correctly, the answer is yes. I'm assuming you're asking whether a prescriptive easement can be obtained when the five years of continuous use is accomplished by two or more successive owners of the parcel to be benefitted by the easement. Yes; this is called "tacking;" it is permissible in computing the five years to add the use by successive users of the road, or whatever. To perfect the easement, the current owner of the benefitted parcel which wants an easement "of record" should file a quiet title suit to get a court to rule that the easement exists.

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Answered on 4/01/11, 11:47 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

After closing and transmitting my previous response, I realized there is a second possible interpretation of your question; viz., what happens if Owner #1 uses the road for 5+ years, thus creating an easement by prescription through his own use, then sells the benefitted property to Owner #2? The answer is that Owner #2 "steps into the shoes" of Owner #1 and has all the same easement rights that Owner #1 had. However, Owner #2 should probably take the additional step of bringing a court action (to quiet title in a prescriptive easement) so there will be an official recognition of the easement that can be recorded. Before bringing suit, Owner #2 might want to ask the owner(s) of the servient tenement (the party or parties burdened by the easement) if they would simply agree to execute a voluntary easement agreement to avoid the costs and nuisance of suit.

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Answered on 4/01/11, 11:56 am


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