Legal Question in Real Estate Law in California

approximately 20 years ago, I established a small road on one side of my house to have access to my back yard. the road utilizes a portion of the neighboring lot.
when established, the neighboring lot was vacant and no one present to contest my use. about 10 years ago, a house was built on the lot, and the owners of the house never opposed my use of the road, nor placed any restrictions upon my use of said road.
about 3 years ago, a new owner moved into the house, and also did not voice any opposition to my use of the access road I created. In the past few days the owner of that house has installed plants and sprinklers into the area occupied by the road. I asked her to not block my access. but I have a notion that she will not comply. I believe that an established right of way, 5+ years standing is considered a valid, enforceable right. If so, do I have a viable enforceable claim to right of way?

Asked on 8/26/10, 11:13 am

3 Answers from Attorneys

Terry A. Nelson Nelson & Lawless

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You certainly have a 'claim'. Whether it is a 'valid, enforceable right' is a different question, not at all certain. If you and your attorney can't negotiate an acceptable resolution and easement agreement, you'll have to file suit to try to obtain and enforce one. If you are serious about doing so, consult with local RE litigation counsel to discuss the facts and the costs of pursuing this.

Answered on 8/31/10, 12:02 pm

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

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What you describe is a classic example of an easement by prescription. By acquiesence in your use for the required period of time, the neighbor's right to object to it is blocked by the prescriptive easement law, which is a kind of statute of limitations.

As Mr. Nelson suggests, it is going to be cheaper, quicker and more neighborly for the two of you to sit down with your lawyers and draw up an easement agreement that can be recorded.

If need be, however, you would probably be successful in court if you filed and served a two-part complaint, asking (1) to quiet title in an easement by prescription, and (2) for an injunction requiring the removal of landscaping, etc. that excessively interferes with your use of the easement. You could also (3) ask for damages, but that seems like overreaching in a situation that is already going to hurt neighborly relations.

Answered on 8/31/10, 12:35 pm

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