Legal Question in Real Estate Law in California

My neighbor is stating he has a prescriptive easement to our driveway. His parents are the only ones on the property's title and have only been there two times in twenty years. My question is can renters or children have the same right as if the owners were living at the property for five years? We have currently blocked our driveway ,he now has to use his own driveway. We know he does not have a recorded easement to our property. There has been actual damage done to our driveway due to his use.
-- The easement is not necessary because he has his own private driveway on the other side of his house. He only uses mine because we maintain it and remove the snow when needed. He uses it only as a convenience to himself.
Sheldon

Asked on 2/04/11, 2:30 pm

3 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

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Prescriptive use does not have to be by the title holders of the would-be dominant tenement. It can be by persons deriving their rights to use the dominant tenement by rental or lease. So, if the neighbor has been renting his property for 20 years, and his tenants have used your driveway, there's a pretty good chance he has a prescriptive easement. Necessity is not a factor in prescriptive easement cases.

Answered on 2/08/11, 6:20 pm

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Anthony Roach Law Office of Anthony A. Roach

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I am not so sure that I agree with Mr. Whipple on this one. At the outset, I understand you to say that there certainly would not be an easement by necessity, as there is already a driveway on the other side of the property. So the issue is whether there is a prescriptive easement.

There is no such thing as a prescriptive easement until the court makes a finding that one has been created. A neighbor cannot say he has a prescriptive easement, and that be the end of it. I say that, because the same rule applies to title by adverse possession. A party does not have title by adverse possession until that is established by the court.

�To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.� (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305; Code Civ. Proc., � 321; Civ. Code, � 1007.) �The elements necessary to establish a prescriptive easement �are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.�� (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938�939.)

Use of someone else's land by neighboring tenants can create a prescriptive easement in favor of the tneants' landlord. But I fail to see anywhere in your post a claim that the neighbor's tenants continuously used your driveway, and as I understand it, it was only used when snow pack blocks his driveway. So I am not so sure there has been continuous use, but more rather occasional trespass and harassment.

Answered on 2/08/11, 9:10 pm

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