Legal Question in Real Estate Law in California

Can a prescriptive easement stand when both properties in question have new owners, and the owners claiming a prescriptive easement knew the access was no longer available prior to their offer and purchase?

Details -We purchased a house early 2011 that has listed in the legal description an easement on neighboring property. However, because the neighbor's property was built first they put the road in the wrong location. The easement is legally on the property across from ours and his neighbor for access and utilities. After we moved in we have found that the road is actually on our property (although the deed states otherwise). As ours was a foreclosure as well, this was not disclosed to us even though we had inquired of the listing agent. The house across from us went into foreclosure and was empty for several months. Before the previous owner moved out, he acknowledged that the driveway was used by verbal agreement with him and the previous owners of our property. As he was leaving we stated it would be fine for him to continue to use the drive for moving out. As soon as the foreclosure was final, we surveyed the property, found the markers, put up a fence with a sign quoting "Right to pass by permission and subject to control of owner: Section 1008, Civil Code". This was all done before the property was actively put on the market. When the listing agent came by we verbally stated about the property line and fence. At no point were we contacted by the bank or realtor.

The current owners knew of this situation as we were very upfront about the condition of the property they were interested in. They saw the situation and even though their access was blocked to their carport they didn't seem to be concerned. They planned to open up a driveway on their side of the fence. As soon as they purchased the property they cleared the legal easement as much as possible with the intention of creating a driveway to their carport. This work was started in October 2011. We have pictures with date and time stamps showing our fence, property line and progression of work they have done to clear the easement (which is now done).We just received a letter from a lawyer stating that they are suing for a prescriptive easement.

I would appreciate any information or suggestions in how to fight this or what information we need to provide a lawyer to best fight this?


Asked on 4/20/12, 10:56 am

2 Answers from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I am doubtful that the changes of ownership will affect the existence of an easement, whether it be the prescriptive easement or the deeded easement-- or maybe I should say whether it be the easement on its deeded location or on its prescriptive location. If both parcels were in common ownership at any time, that would extinguish an easement in favor of one parcel lying upon the other, but so long as the parcels have different owners, changing ownership does not affect an existing easement nor the running of the five-year period for the ripening of an easement by prescription.

Further, if the conditions for an easement by prescription have been met, I think that a court is likely do decide that there is indeed a prescriptive easement, possibly in addition to the deeded easement. The location of an easement created by an express grant can be altered by prescription. See Ocean Shore Railway v. Doelger (1954) 127 Cal.App.2d 392. When the route of an easement as actually used deviates from the route set forth in the written grant of easement, after the required five-year period, a prescriptive easment arises. Lord v. Sanchez (1955) 136 Cal.App.2d 704 and Robas v. Allison (1956) 146 Cal.App.2d 716.

It is entirely likely that both the deeded and the prescriptive easement locations are currently in effect unless there is substantial evidence of an intent to abandon the unused portion of the easement created by deed. An intent to abandon would be shown by non-use plus other circumstances showing that the non-use is substantially permanent.

A prescriptive easement, once established, can't be terminated by posting signs. Your best hope for defeating the easement claim is to show that one or more of the elements required to establish an easement by prescription is missing from plaintiffs' case. Most often, this is the continuous use for five years element, but there are other factors plaintiffs must also prove. More information would be needed to decide whether you have a good defense.

Finally, please keep in mind that a letter from a lawyer starts a discussion, not a lawsuit. There is no lawsuit until you are served with a summons and complaint, at which time, please remember, you must file and serve an answer within 30 days to avoid a possible default.

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Answered on 4/20/12, 2:47 pm
Anthony Roach Law Office of Anthony A. Roach

A prescriptive easement is only created by judicial declaration, after a lawsuit is filed to quiet title to a prescriptive easement. A lot of your post is unclear, and you need to speak to an attorney. For example, you state that your easement is on your property, which does not make sense. No one needs an easement on their own property. Your neighbor's easement is on your property, which would make sense. You then talk about an express easement, but state that it is located in the wrong area, yet it is not clear whether the easement is specifically defined, or would be considered a "floating" easement.

I suggest gathering the relevant paperwork, and speaking to a competent real estate attorney, as soon as possible.

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Answered on 4/22/12, 2:43 pm


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