Legal Question in Real Estate Law in California

Re: Deeded easement

It depends. Is the easement for your exclusive benefit or your neighbor's exclusive benefit? Does it burden your property or your neighbor's?

Generally an easement allows whomever it benefits to use it whenever they wish, wheteher it is used once in ten years or hundreds of time. Failure to use the easement generally does not result in loss of the easement.

Re: Deeded easement

There are two alternative ways to establish that your neighbor has abandoned the easement over your property: (1) statutory and (2) common law.

California, like several other western states, has adopted a statute which sets for the procedure (filing a quiet title action), period of non-use (20 years) and methods to preserve easement during periods of non-use.

The other way is to establish, under common law, namely prior case law, that the neighbor has manifested intent to abandon his easement. It is my recollection that under common law, mere non-use is not enough, but can considered a factor, along with other considerations, such as uses by the neighboring property which are inconsistent with an intent to continue to use easement.

Before commencing a quiet title action, I recommend that you contact an attorney familiar with property law since there any attorney fees provision in the statutory quiet title procedure mentioned above.

[Please be advised that the statements and opinions provided above are an informational service to the general public. Since this reply is based upon an incomplete description of facts, this email should not used as a substitute for legal advice from a qualified and fully-informed attorney. Moreover, these communications are intended for use by the public. As such, this email does not constitute an confidential communication nor does it create an attorney-client relationship with Lynes & Associates or any of its members.]

Re: Deeded easement

It seems pretty clear to me that the easement described burdens your property and benefits your neighbor's property.

Once upon a time, it was practically impossible to lose an easement, particularly a deeded easement, by non-use. Easements could be extinguished by abandonment, but it took more than mere non-use to establish an abandonment.

That's been changed by statute in California. An easement is considered abandoned after 20 years if a bunch of conditions are met, the main one being non-use for 20 years by the owner of the benefitted parcel.

Then, the owner of the burdened parcel can bring an action to have the easement declared abandoned by a court. Until the court renders its decision, however, the easement holder can take action to preserve the easement, such as recording a notice of intent to preserve the easement.

See Civil Code, sections 887.010 through 887.090.