Legal Question in Real Estate Law in California

Re: Does an easement exist?

One thing you can do is ask the neighbor to grant you an express easement. Whether this will work depends upon the neighbor's temperament, knowledge of the law, and intended use of his property. You can offer to pay a lawyer to have it prepared, and, if necessary, to pay for a survey. You can explain that you have an easement by prescription anyway, and you would prefer to deal amicably rather than sue. Sounds as though you do have the easement.

If the neighbor won't cooperate, then you can file a lawsuit. Without doing research, I think the suit could be either to quiet title in an easement (an easement is, I believe, a sufficient estate in land to warrant a quiet title), or for a declaratory judgment declaring the existence of the prescriptive easement, or both. A suit for declaratory judgment is entitled to priority in trial setting and might be preferable for that reason.

Don't you have access to the rear of your lot by way of a back door? In any event, I don't think an easement by necessity or implication is the best theory upon which to proceed.

Re: Does an easement exist?

If you're a backyard is "landlocked" you have a specific prescriptive easement, with a record or not, for reasonable ingress and egress (getting an out). If you wish to a sure this right in the future so it continues to run with the land I would suggest that you contact the owner of the adjacent property and ask for a recorded easement to be prepared. This should be done by a professional, as an individual who does this makes any mistakes will have to both live with the mistakes now which may affect the value of the property later. Additionally, if there are other properties further down the alleyway they may wish to join into the easement so it covers the air rights as well. That will possibly lower the cost by splitting the cost between all parties. You may wish to investigate their desires before you contact the adjacent owner. If the bank owns the property talk to the bank. The problem is you may be raising a tempest in a teapot. I was look at what of the consequences of any act and that may be that the bank or whoever takes possession and title from the bank may not wish to have a written easement as it might affect the value of their property, which they just purchased. The only problem I see as if that adjacent landowner in some way closes the alley. Then you would have to fight it out in court if the wouldn't agree to something reasonable. While I cannot perceive someone doing that after 30 years in this business I've seen so many crazy situations that it defies the imagination. I'm in the San Francisco Bay Area and if you wish to contact me, 925 -- 945 -- 6000.

Re: Does an easement exist?

It appears based on the information you provided that an easement by prescription is in existence. Open and notorious use for more than five years even by your predecessors. Call to discuss and to verify with more info. Don Holben 800-685-6950