Legal Question in Real Estate Law in California
Easement created?
My husband and I own the house my mother lives in. My mother verbally agreed to let her neighbor park in her driveway, free of charge and indefinitely.
We are concerned that this will set up the precedent for an easement on the property. In addition, we feel this opens us up to liability for any damage incurred to the neighbor's vehicle while on our property.
Should we at least write up a contract excluding us from a potential easement on our property and/or any damage which may occur to her vehicle while parked in our driveway?
Any help you could give us would be much appreciated.
2 Answers from Attorneys
Re: Easement created?
While I agree that there should be something in writing, I'd make it a license rather than a lease.
There is little danger of the existing arrangement set up by your mother ripening into a prescriptive easement. One of the requirements of a prescriptive easement is five years of "adverse, hostile" use by the claimant. When permission is given, the use lacks the necessary element of hostility and cannot become a prescriptive easement. The trouble is that so long as the permission is oral, and there is nothing in writing, it could be more difficult to win in court, especially five-plus years down the road, when recollections are dim.
So, my suggestion is that whomever is legally entitled to possession (the two of you, if mom lives there as your guest, or mom, if she is a true tenant, write up a very simple permission slip in duplicate, signed by both parties, granting a non-exclusive license for the parking, and stating that the neighbor assumes all risk. Unlike a lease, a license can be revoked at any time for any reason, and conveys no exclusive right of possession.
A license is what you get when you enter a parking garage and take the ticket from the machine.
The giving of a consideration is not necessary to creation of a license.
Re: Easement created?
Yes, write up a lease, and set the term at one year or less, so that you're free to change your mind at that point.
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