Legal Question in Real Estate Law in California

Gentlemen,

I am under contract and in escrow to purchase a property where a non recorded prescriptive easement has existed for 80yrs. 40 of which the land owner has allowed use and improvement of the easement. The easement was originally built by the county for sewer line installation over 50 years ago. Though this easement is not the only access to the property, geographical challenges make it impossible to build a new road to the house. The neighbor has now built a fence blocking the easement and stated he wants the easement. This is a Forclosure property and I am buying it from a bank. In the event the bank did not subordinate this easement in the sale I have the following questions.

1) is the easement extinguished or can possession be "tacked"?

2) is there and rulings in this situation where I have a chance of keeping it?

3) besides getting an attorney( difficult right now since I scrounged together to pay cash for owner occupied sale) what should I do?


Asked on 11/22/11, 6:41 pm

2 Answers from Attorneys

George Shers Law Offices of Georges H. Shers

The neighbor can not block off the easement; contact the county and see if they still want it or intend to give it up. If the former, ask they to tell the neighbor to remove the fence. if the latter, if there is no reasonable access to the property then there is an easement of necessity that can be enforced. Look at a Nolo Press book on real property and review other legal sources on the requirements for an easement and of removing it. Once you have that information, write the neighbor a calm, well reasoned letter stating that the easement still exists and he needs to remove the fence to allow access or you will have to sue him. You might need to bribe him with money to be paid in the future.

Selling property has no effect on the easement with which it might be burden [unless the seller also claims to hold a residual easement right]. point out to the bank and title company the easement and try to get the title company to ensure your right to use the property. The bank merely is selling you what its property interests are.

If you are willing to spend $20-30,000+ to buy a house, you need to seriously consider spending a little more to be sure what you are actually buying. If you find the right attorney, it might cost less than $1,000 [at the rates charge it would probably fit within that limitation]. Look as t prior real estate answers on this site and see which attorney you trust.

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Answered on 11/24/11, 8:09 pm
Anthony Roach Law Office of Anthony A. Roach

You need to speak to a competent real estate attorney. I see a lot of issues with your post.

First of all, there is a big difference between an easement granted to a public entitity for sewer service and an easement for ingress and egress. An easement for sewage does not automatically grant you an easement for access to your property.

Second, a prescriptive easement is not enforceable until a court quiets title to a prescriptive easement. Easements are property rights and where easements are appurtenant to a dominant property, the easements are transferable. Once the elements of a prescriptive easement are satisfied, a user may pass the prescriptive rights to a buyer of the dominant property. However, as a practical matter, prescriptive title is not marketable or insurable until it is established on the record by a judgment. While there is some case law questioning the transferability of easements in gross (easements that are not associated with a dominant property - not applicable to your situation), Civil Code Section 802 provides that all easements are transferable.

The law does allow tacking of prior use to establish a prescriptive easement. This means that you will have to locate the prior owner and have them testify as to their use of the prescriptive easement in any action you file to quiet title.

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Answered on 12/12/11, 8:18 am


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