Legal Question in Real Estate Law in California
Prescriptive easement pases to new owner?
Four years ago my brother,Shaun, bought an 80 yr old house from an owner
of many yrs [14 yrs or more] .
In August �02 Shaun�s neighbor Mr L did a survey showing a triangular corner of my brother�s house encroaching Mr L�s lot by 2 � feet at maximum. Mr L had known of the problem for 10 yrs-- because of an earlier survey made by HIS neighbor, 2 lots down from Shaun.
My question is: Does Shaun�s house [or parcel or Shaun] �inherit� the prescriptive easement rights of the previous owner,even though Shaun himself only owned the house for 4 yrs?
--or would Shaun be likely get a written easment in court?
Before the survey [March,2002] Mr L.�s attorney sent Shaun a letter stating that Shaun�s use of Mr L�s propery is by permission & if an encroachment were found Mr L. would demand removal.
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This encroachment was not disclosed at selling,but I believe the previous owner was aware of the problem because of the earlier survey.
1 Answer from Attorneys
Re: Prescriptive easement pases to new owner?
Both the benefit and the burden of easements run with the parcels, except where the specific terms of an express easement provide otherwise.
Therefore, IF a prescriptive easement existed in favor of a prior owner, and nothing has happened to extinguish that easement, it benefits Shaun's parcel and burdens Mr. L's parcel.
(Extinguishment is unlikely, but possible).
The easement was probably created, if ever, many decades ago, so Mr. L's acquiescence is likely not a factor.
I would guess, based on the facts given, that Shaun has a greater chance of prevailing than Mr. L has, should this matter go to court. However, without laborious research at the courthouse one cannot be sure, and both neighbors would be better off to settle this matter by negotiation than in court.
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