Legal Question in Real Estate Law in California
License or easement? Grant of land to a neighbor
After purchasing a residential parcel, I was approached by a new neighbor who indicated that he believed I was on his land. To verify/discredit the claim, I hired a licensed surveyor to stake lot line. My neighbor now accepts that the land in question, as well as a small portion of his driveway, exist within the boundaries of my lot. He was understandably not happy with this, and demanded that I grant him an easement for that portion of his driveway, as well as for several large trees that border it. His position is that because he has watered the trees for approximately 5 years, they belong to him. County records verify that he has never paid property tax on the area. I am not bothered by his driveway extending over the property lines and am willing to let him continue to care for the trees. However, I understand an easement to be a very permanent document and not subject to recall. I prefer the ability to revoke use of that land, should the neighbor or a future owner neglect to trim the trees or care for them. I have heard the term ''limited-time license.'' Do you know something about this type of land-use grant? I would be obliged if you could point me toward documents that discuss various options in this situation.
2 Answers from Attorneys
Re: License or easement? Grant of land to a neighbor
You are correct that there is a big difference between an easement and a license. An easement is a non-possessory interest (or 'estate') in land, and 'runs with the land,' i.e. passes with changes in land ownership. A license, on the other hand, is personal, like a contract. Although a license gives the licensee rights to do something on the land, a license is revocable and does not 'run' with ownership.
Note that even though a license is revocable, its revocation might be a breach of contract and thus the licensee could be entitled to damages in some circumstances.
Generally, express easements must be in writing, while licenses can be granted orally. Unlike other contracts, grant of a license does not require receipt of consideration.
There is an area of overlap between easements and licenses, and litigation has arisen often over whether a particular grant was one or the other. The best way to avoid interpretation questions is to have the instrument drafted professionally. The intent of the parties would often be a key factor, so if the instrument recites that the parties intend only a license and not an easement that should be decisive, particularly if other license-like characteristics are inserted, such as no consideration, revocable on short notice, not transferable, etc.
Re: License or easement? Grant of land to a neighbor
I would agree with the previous answer. The important thing now is to make clear that whatever has happened in the past and what happens in the future is not an easement, nor is it something permanent.
The written license is likely the way to go, and it can be recorded with the county recorder to clarify the ownership during title searches.
I'd also agree that having it professionally drafted after review of the records and discussion with you is best, as you don't want to inadvertantly give away more than you intend. It will cost something now, but will also preserve your property value and cut down on possible future litigation to solve the problem.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
