Legal Question in Real Estate Law in California

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.

Re: Prescriptive Easement Post-Purchase

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

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.

Re: Prescriptive Easement Post-Purchase

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

Joel Selik

Attorney/Broker

JOEL SELIK

Attorney at Law

800-894-2889

760-479-1515

702-243-1930

Licensed to Practice Law in California and Nevada Only

CONCENTRATING IN ELDER ABUSE, LITIGATION AND COLLECTIONS

Personal Injury, Contracts, Tax Matters, Business,

Malpractice, Appeals, Elder Neglect/Abuse/Nursing Home Malpractice

Real Estate, and Other Legal Matters

This is just general information. No representations are made and no attorney client relationship is established by this communication. In most matters there are strict time limitations within which actions may be taken or your rights will be compromised. We are not taking any action on your matter and will not be considered your attorney or tax representative until both you and we have signed a fee agreement.

We, therefore will take no action on your behalf unless a written retainer agreement is signed. There are strict deadlines, called statutes of limitation, within which claims or lawsuits must be filed. Therefore, if you do not retain SELIKLAW, you should immediately seek the services of another attorney or other advisor.

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.