Legal Question in Real Estate Law in California
right of access to and from land
We cross a neighbor's property to get to ours. We do not have an easement. Title insurance is researching our right of access. Apparently, depending on our policy, we may only be insured for legal access, not physical access.
1. How do I know if the policy covers legal or physical? Verbiage used ''Lack of a right of access to and from the land'', Exceptions: ''Rights of the public in and to any portion of said land'', Definitions: ''Land: ...does not include ..., nor any rights, title, interest, estate or easement in abutting streets, roads..., but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy.
2. Even if there an easement across another property, the road we use is the only real access (this is very hilly area). It is the only fireroad per the fire dept regulations. We are in a high-fire zone (IV). Building and Safety would not allow any building, remodeling etc. if we do not have fire road access. This would make our property much less marketable, no?
3. We have the right to get a prescriptive easement. How costly is that, ballpark?
4. Do we have any recourse against those involved in selling us the house? Shouldn't it have been disclosed?
3 Answers from Attorneys
Re: right of access to and from land
If the verbiage used says "lack of right of access to land", that clearly indicates that you were not getting policy insurance relative to such access. This most assuredly affects marketability and value of your property. If the lack of access was not disclosed to you, then you have a case against the seller; however, be sure that you were not provided title documents for review and approval, etc; you may have had it disclosed but did not understand what you were reading. You really need to take all your documents to a competent real estate attorney for review. Please do not hesitate to contact our office should you wish to pursue this matter and set an appointment to review your docuemnts.
Re: right of access to and from land
You probably already have a prescriptive easement, and at worst, an easement by necessity. If they house is more than 5 years old, and people have been using this road to get to and from the house, there is a prescriptive easement.
Re: right of access to and from land
First, your title insurance is probably not of value in rectifying your problem, but that could only be determined for sure by reading the entire policy.
Second, any failure on the part of the seller or his agent to discuss lack of access or a possible easement dispute could be actionable. This would be a pretty serious breach of duty by an agent. Your own (buyer's) agent could also be liable.
It is definitely worth the necessary expenditure on legal fees to clear this up, since an access dispute will have a serious negative impact on the value of your property and could result in an action by the neighbor to bar your access, if such action hasn't been taken already.
The first step is to retain counsel to review your documents. The counsel should next try to negotiate a voluntary grant of easement by the neighbor, which would then be surveyed and recorded.
If the neighbor won't cooperate, I would recommend bringing an action to remove cloud or clear title with respect to the easement.
The expense is difficult to predict, but if you have a good factual basis for claiming a prescriptive easement (or easement by necessity, or implied easement -- alternate theories, not different names for the same thing), it should be a bargain in proportion to the impact of no easement at all on your property.
Finally, if you don't have an easement, the court won't create one. What the court can and probably will do, however, is declare that you do have an (previously undocumented) easement under one or another of the theories of easement creation mentioned above.
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