Legal Question in Real Estate Law in California
I own a home in San Diego County that was built in 1984 behind another home. The original owner of the property subdivided it into 2 parcels. As a result, on our deed we have a "private road easement" included to access our house from the street. The neighboring land owner adjacent to the 2 parcels recently built a rental dwelling behind her main house. Her tenants are now using the easement. She paid the parcel in front of our house to use the easement. We asked him and he confirmed that he received payment from her with the understanding that she had already spoken to us about it. She did not. We tried to talk to her amicably and she now refuses to speak to us. She instead sent a copy of an email correspondence she had with someone advising her that there was nothing we could do because we have no right to take away her permission to use the easement since the landowner in front of us granted her rights. Is this true? She has damaged the easement since putting in a gate and cutting into our curbing which is now also eroding our driveway.
2 Answers from Attorneys
It would require a review of the deeds and the subdivision documentation to give you a conclusive answer, but chances are very good that the easement you received over the front parcel was "non-exclusive." If so, the front owner did, indeed, have the right to grant her an easement in the same location. That does not, however, give her the right to gate the easement or damage your curb or driveway. An action for trespass and possibly surcharge of the easement would probably be successful on those issues.
I would say "overburden" rather than surcharge, but otherwise I agree with Mr. McCormick. Nevertheless, in imagining the scenario without actually seeing the driveways or any map, it seems likely to me that the neighbor may be using, not only the portion which lies on the easement proper, but also part of the driveway that is on your own lot. The neighbor cannot do this without obtaining an easement from you, because you are the owner of the underlying land from the boundary on back. Does this make sense? In other words, to get to the back of the neighboring property, doesn't the neighbor have to use at least some portion of the driveway that lies on YOUR land?
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