Legal Question in Real Estate Law in California

Prescriptive Easement Post-Purchase

I have a client who we just closed a purchase transaction for in the city of Temecula(semi-rural area). The subject property has a garage located on the western boundary of the lot(it also faces west) with access to the street via a driveway located on an adjacent vacant lot. According to the seller, the two lots were partitioned by the previous owner after construction of the structures in 1950 and then the lots were sold to different owners. Now the current owner of the vacant lot is preparing to build a fence along the boundary lines of the property as he is attempting to sell the property, the fence will completely cut off access to the garage and render it useless. What recourse does my client have to prevent this from happening and to ensure his future right of access?


Asked on 8/10/04, 12:12 am

5 Answers from Attorneys

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

Re: Prescriptive Easement Post-Purchase

The place to start would be, of course, a search of the public records to see whether an easement was created by express grant or by reservation at the time of subdivision.

If none is shown of record, the next resort would be to finding an implied easement; they frequently are found by courts where a subdivision otherwise would create a land-locked parcel. This is perhaps the most likely scenario here, although one would hope to find an express easement by grant or reservation. An implied easement is also sometimes referred to as an "easement by necessity," although in another way of looking at things, an easement is really never "necessary" because the law tolerates (while disfavoring) landlocked parcels.

If this fails, an easement by prescription may be found under these facts; there is also a theory called "easement by estoppel" which could be investigated for possible applicability to the facts.

In sum, I think your client has a reasonably good chance of prevailing in court to obtain a non-exclusive right of ingress and egress under one or more theories of creation of easements, and I would suggest starting research with the less-aggressive theories. If a suit is necessary, however, assert all theories as alternatives.

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Answered on 8/10/04, 12:55 am
Christopher M. Brainard, Esq. C. M. Brainard & Associates - (310) 266-4115

Re: Prescriptive Easement Post-Purchase

Implied easement, presecriptive easement, easement by necessity... You may contact me.

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Answered on 8/10/04, 12:58 am
Julian Summers Summers Rubinstein, APLC

Re: Prescriptive Easement Post-Purchase

I have read your query posted through LawGuru.com respecting your client's issues respecting the driveway. While you reference prescriptive easements, I think that you are referring instead to an easement by necessity. Without knowing your facts, I can't determine which route would be most beneficial to your client.

The legal tests in California to acquire a prescriptive easement over the property of another owner are (a) open (obvious, not secretive), (b) notorious (clearly visible), (c) hostile (without the landowner's consent), and (d) continuous (without interruption) for five years. Payment of property taxes is not required, as it is to acquire title to the entire property by adverse possession.

However, it is still possible to maintain an argument for an easement even absent those above-stated rules. If the land in question is "locked" - eg. there are no other routes for ingress or egress from the property (eg. adjoining roads), then the owner of the property can petition the court for an easement.

Necessarily, the easiest method would be to first look up the relevant county records to determine if an easement was previously recorded with respect to the neighbors property and if not then talk with this neighbor regarding the situation and see if an easement can be mutually agreed upon. If that fails, then bring an action for declaratory relief to establish the easement.

This communication does not constitute legal advice and you should consult with an attorney directly regarding any questions you have regarding your client's situation. This communication does not establish an attorney-client relationship and any communications you make to this office may not be subject to the attorney-client privilege.

If you wish to discuss this matter further, please do not hesitate to contact this office at: (760)837-9805.

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Answered on 8/10/04, 1:14 am
Joel Selik www.SelikLaw.com

Re: Prescriptive Easement Post-Purchase

many. Should look to title company and preemptive suit against fence builder

Joel Selik

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Answered on 8/10/04, 2:33 pm
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: Prescriptive Easement Post-Purchase

You may petition for an easement and a preliminary injunction to stop the fence building. Call me directly at (619) 222-3504.

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Answered on 8/10/04, 3:56 pm


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