Legal Question in Real Estate Law in California

I think you are confused about what an easement is. An easement is the right to go onto the land of another and do something that would otherwise be a trespass. It is not an altered boundary line between two parcels of property. The property retains its original boundary line, although the easement itself may be delineated by described boundaries in the instrument that created it. An easement is a right, that is limited by its scope. The scope may have boundary limits in its definition, for example, the owner of a lot behind you may have a right to cross over the West 10 feet of your property. But it does not move your boundary lines as to the parcel you own.

Mr. Roach has come up with another one of his "Microsoft Tech Support" answers: one that is entirely technically correct, but does nothing to solve the problem or answer the question asked. He is quite correct that you can only move the actual boundary by an easement. However, what you are describing is using an easment to give the other person the right to use part of your property (or vice versa) as if the property line is in a different place. That is a perfectly valid and appropriate use for an easement. However, since you want the right to expire upon sale, an easement would not be the best vehicle. What you want to grant is a license. The difference between a license and an easment is minimal, but the crucial difference is that it is granted to a person, rather than a right that attaches to the land title of the person who receives the right. An easement is effectively a permenant right that belongs to whomever owns the land that gets to use the other property. This distinction, that you were not even aware of, is why you need to have a lawyer at least help you write your agreement, to make sure it operates under the law the way you contemplate. As for your second question, neither an easement nor a license needs to be recorded in order to be valid between you. If you want any aspect of it to be binding on anyone else who might claim they didn't know about it, however, it must be recorded.

I think Mr. McCormick may have made an inadvertent misstatement by quoting Mr. Roach as saying "you can only move the actual boundary by an easement." Easements don't move boundaries; deeds do. In particular, adjusting a boundary between two adjoining properties is often referred to as a "lot-line adjustment" and would be done by deed after complying with the Subdivision Map Act and perhaps other laws limiting the rights of owners to change the configuration of their properties.

However, I agree that what these neighbors are describing, and needing, is a license, or perhaps more accurately, two reciprocal licenses. As used in real-property law, a "license" is the right to use someone else's land in a way that, but for the license, would be a trespass. A license can be oral, doesn't require giving a consideration, is usually revocable, and expires upon the death of an individual licensor or licensee or their loss of the power to grant or exercise the license for other reasons.

Since a license can be oral, there is a good case that the neighbors have already given each other licenses as a result of their discussions.

Nevertheless, for the sake of clarity, and to prevent misunderstandings, the neighbors would be well advised to write up their agreement with the assistance of a real-estate lawyer, with a sketch map attached as an exhibit. The written agreement should specify that it is a license, and the conditions upon which it expires or may be revoked (otherwise, it is revocable at will). I would not record the agreement.