Legal Question in Real Estate Law in California
My parents have been in their Northern California home for 17years now. Other than removal of dying trees, they have made zero changes to the property. When they purchased the home from the original homeowners, they had a driveway that was already in place and had been there for 5+years. The homeowners, who just purchased the home next-door, have recently had a surveyor come out to plot their property and it is now being discovered their property goes over into my parents driveway. The surveyor has put up markers and the new owners are fencing the area off and this includes putting markers and fencing up blocking my parents from removing items that they have been told need to be moved ASAP.
Is there anything my parents can do at this point? They have been paying taxes on the property, including the driveway area that they have now been told belongs to the other homeowners. How is it a property can be sold to my parents and now after 17years they are being told the property lines are wrong?
2 Answers from Attorneys
Yes, indeed! The most likely legal theory upon which your parents can prevail in court is that they have acquired an "easement by prescription" or "prescriptive easement" for their driveway. This requires "open and notorious" "continued and uninterrupted" use for at least five years, and the phrases in quotation marks have rather specialized legal meanings which your parents probably meet. It is also possible that they have actually acquired title by adverse possession, and if neither of these theories turns out to work, there are a couple more that a real-estate lawyer can try on for size versus the detailed facts. In any case, your parents should see a real estate lawyer who had done significant work in the area of easements and adverse possession and have an initial face-to-face conference. Take assessment, property tax, parcel description and if possible a copy of the surveyor's work to such a conference.
I agree with Mr. Whipple entirely and want to emphasize a couple of things. 1. Move quickly. If they are fencing it off your parents need to counter that right away to avoid waving rights by failure to act. 2. See a lawyer in person and make sure they are knowledgeable about easement law specifically. This is a complex area of the law. Do not rely on the internet for information, and make sure the lawyer has handled easement cases. 3. In addition to the paperwork Mr. Whipple mentions, be sure they bring the deed they received when they bought the property, and any title insurance papers they received as part of the transaction.
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