Legal Question in Real Estate Law in California

Re: neighbor wants easement

It sounds like you have a decent understanding of the law on this topic. There is typically an element of necessity when a prescriptive easement is upheld.

I don't know of any hard definition of continuous use, but failing to use for two years must put him outside any definition.

Perhaps you send him a nice letter, explaining that you don't believe he has an easement and that you believe he can access his land another way. Apologize for the inconvenience and suggest that he'd probably feel the same way about people unnecessarily driving on his property. Invite him to call and discuss. Be very polite and avoid any adversarial overtones.

If he sues you, you can re-evaluate. At that point, you can decide if you want to defend or if you want to end the lawsuit quickly by agreeing to allow him some useage.

This is general advice intended for your consideration but not for you to rely upon. Sit down with a lawyer for an hour or two and get some carefully crafted advice based on an attorney's FULL understanding of the facts before you make a decision.

Re: neighbor wants easement

There is no hard definition of continuous use, and the existence of a period of time between acts of usage does not necessarily destroy continuity of use. Easements that are seasonal or periodic may be acquired by use in the appropriate seasons or periods. An example is use of a particular path to drive cattle to and from a summer range. On the other hand, occasional acts of trespass do not satisfy the requirement of continuity. Continuity is established by evidence that shows a settled course of conduct indicating an attitude of mind on the part of the user(s) that the use is the exercise of a property right.

In your situation, the infrequent use of this method of access (I assume) as an occasional alternative to access via other routes strongly suggests that the use would not be deemed continuous by a California court.

Moreover, your neighbor's use does not seem to meet the requirement of adverse use. Permissive use, no matter how long continued, cannot ripen into a prescriptive easement. While permission is usually in the form in the form of a written or oral arrangement (a license), but can be inferred from a family or neighborly relationship. See Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564 at page 572: "whether the use is hostile or merely a matter of neighborly accommodation....is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties."

The existence of gates across a road or path has been viewed as evidence of permissive use. Courts conclude that the gate demonstrates an intention on the part of the landowner to assert his ownership and constitutes notice to strangers that they travel by permission.

Since your acquisition of the property two years ago would be construed to revoke any license for use given the neighbor by the prior owner, you might consider (at least) giving the neighbor a new, revocable license, in writing, to continue the prior permissive use of the driveway and gate.

I'd say if he tried to assert an easement in court through a quiet title action, you'd win easily.

Re: neighbor wants easement

Our CA attorney can assist you with this if you wish. We don't think your neighbor has obtained rights to an easement.