Legal Question in Real Estate Law in California

Re: easement

An express easement would be recorded with the county recorder's office. However, if an implied easement, or easement by necessity exists here, then there would be no document in existence per se. If you would like prompt, affordable legal assistance in this unfortunate matter, contact us directly today for a free phone consultation.

Re: easement

Check your purchase documents and the County Recorders office.

Re: easement

Well, an express easement should be recorded, anyway.

Easements can be created by express grant, express reservation, by use (i.e., by "prescription"), or by legal presumption (i.e., an implied easement). There are a couple of other methods not likely to be applicable here.

The term "easement by necessity" is misleading because it suggests that if a property owner's parcel appears to have no legal access (i.e., is "landlocked"), a court can create or declare an easement across the neighboring parcel(s) to reach a public road. Courts have no such power. Taking property or property rights from one private owner to give to another private owner isn't permissible. The similar right of condemnation or eminent domain can only be exercised by a public agency or public utility for a public purpose. Instead, courts can find that an easement "must have been intended" when land once under common ownership was subdivided, because otherwise some of the post-subdivision parcels would be landlocked, and "obviously" the subdividing owner didn't intend that result. This is quite different from the taking for private purpose and requires that there have been common ownership in the past of the parcel to be burdened and the parcel to be benefitted.

In your case, an express easement is more likely to be in his documents, but it might be in your title insurance as an exception.

An easement by prescription requires five years of open use without permission. If the five-year clock is catching up on you, the easiest way to prevent a prescriptive easement from maturing is to give him written, revocable permission to use your driveway. Then, later on, revoke the permission.

You might want to start by having a local lawyer go over your deed and your title insurance, then get a copy of the neighbor's deed. If no reference to an easement turns up, then challenge the neighbor and find out where he thinks he derives and easement. A good lawyer should be able to advise whether this is BS or a bluff or valid.