Legal Question in Real Estate Law in California

Re: Prescriptive easement

If the owner of the land knew you and the prior owner of your land were using it for the described purpose and did not mind, then it may be considered as "permissive" use, and not hostile, as is necessary for a claim of easement by prescription; did he ever demand that you stop using it? Was it posted? See Civil Code Section 1008.

Re: Prescriptive easement

Well, you and your predecessor in interest certainly meet the five-year requirement for a prescriptive easement. The other requirements are that your use be (a) adverse, (b) open and notorious, (c) continuous and uninterrupted, and (d) exclusive. There may also be a requirement (e)that your use be under some kind of 'claim of right' but that could perhaps be as little as a bona fide belief that you had an easement or that the land belonged to you. All these terms have very technical meanings in this context and even most lawyers would have to research how these criteria are met. Payment of property taxes is not a factor.

Based on the limited facts given, you may meet all the criteria. Your main problems might be whether your use was 'hostile' or whether the neighbor had given permission, say, to the prior owner; and the 'claim of right' issue.

An easement by prescription does not require any specific court action for its creation; it arises automatically when the conditions are met. However, it is not a 'marketable title' interest until you go to court with a quiet title action. Further, you will probably have to defend your easement in court on the basis that the garage would be an interference with your easement. Again, the quiet title action is the way to proceed.

You should have a local real estate attorney review your facts in greater detail to see whether you have any problems. In court, the burden of proof will be on you to show that all the factors are met. If you fail to prove all the factors by a preponderance of the evidence (51-49 your favor), you will lose.