Legal Question in Real Estate Law in California

Re: easements

It depends on whether you have an express easement or a prescriptive easement.

A lot of people think that an easement is a place, or a section of property. It is not. An easement is the right to go on the property of another person, and do something that would otherwise be considered a trespass. In your particular case, it sounds as if you have an easement on your neighbor's property for ingress and egress.

An express easement is created with the consent of the owner. They are almost always matters of public record, and given some requirements, would be binding on a subsequent purchaser.

A prescriptive easement is an easement that is created without the consent of the owner. It is created in a manner similar to adverse possession, without the requirement of paying property taxes, for a period of five or more years. The party claiming a prescriptive easement must show continuous use, and can use tacking of previous owner's use if necessary (although not necessary given your claimed 35 year use.)

No matter what easement you have, you would need to file an action to quiet title to a prescriptive easement. I would advise you to speak to a knowledgeable attorney, with a copy of a preliminary title report for your property, which may contain reference to an express easement.

Good luck.

Very truly yours,

Re: easements

There are several case decisions discussing easements. It appears your easement is not listed on title to the neighbor's property. Thus, you would need a separate written agreement providing for the easement, a claim for a prescriptive easement or a claim for an easement by necessity. Your recourse will obviously depend on the specific facts relative to your situation. There are several questions that need to be answered before a proper evaluation of your rights can be given.

We practice real estate law out of Southern California (Newport Beach). Feel free to email or call anytime.

Re: easements

Well, there are about a half dozen ways that easements can be created, and maybe ten by which they can be terminated, and sometimes the method of creation partly determines what methods of termination are possible and which are not. For example, an easement to paint an advertising sign on a barn terminates upon the destruction of the servient tenement, e.g. when the barn burns down. There is no one-size-fits-all statutory or case law, either to attack an easement or to defend it from attack.

I would say, however, that easements tend to be quite durable, especially when they are access easements that have seen long and frequent use by the easement holder.

I do a lot of easement work, and if you contact me directly with details of how your property acquired the easement and upon what theory your new neighbor attacks the easement, I can perhaps give you a free analysis and some case law citations.