Legal Question in Real Estate Law in California
Easement vs Title Insurance
I am thinking about buying several lots (as a package). One of them has right-of-way and utility easements through it, but may still be buildable. The problem is the neighbor (land-locked) has built a garage on part of the land. The garage was issued a permit, but not inspected, or signed off. It appears to be a prescriptive easement, but none is recorded. If I buy, how do I get this land back? Can I get the neighbor to move it and if not, would title insurance cover the loss of the land?
2 Answers from Attorneys
Re: Easement vs Title Insurance
By definition, a prescriptive easement is not recorded. It arises as a result of the use of another's land for a specified period of time. After the passage of this time it may be difficult to recover the land affected by the easement.
Whether you are able to "get the land back" after you purchase it depends upon a number of factors, including the time that has passed since the garage was built. While you may be able to get your neighbor to "move" the garage, it is unlikely that they will voluntarily do so. You may want to reconsider purchasing that portion of the property which contains the garage.
Re: Easement vs Title Insurance
To start, title insurance is unlikely to protect you against encroachments that are plainly visible since they would argue that you had constructive notice of the problem prior to purchase and bought anyway.
As to whether the neighbor has a prescriptive easement and whether you can eject him, this is fact sensitive and cannot be answered on the basis of the information given alone.
In order to obtain an easement prescriptively, the user/occupier's use must be adverse, open and notorious, and continuous and uninterrupted for the period of prescription, which in California is basically a five-year period but that, like all the other terminology, is technical in interpretation and application..
If the neighbor is land-locked, his easement may be by implication or so-called 'necessity,' although from your standpoint that's not helpful.
I think you should regard this set of parcels as problematic, and either avoid it or treat the likely costs of lawsuits to clear title as a project cost affecting risk and profitability. Even if you brought a suit to remove cloud you very well may not win. Further, the problems will affect your ability to borrow to finance construction.
As an alternative, evaluate the project assuming that the easements will be a limitation on what you can do, and see if it still looks viable.
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