Legal Question in Real Estate Law in California
prescriptive easment
I am selling a property where 2 owners share a driveway. My clients property line is 3/4 of the way into the driveway. They both share it to get to rear of the property where they park their cars. Nothing is recorded in regards to this easment. It has been this way since 1926, however, one owner must sell now and the best use of this property is to tear it down and build 2 units. What rights do my clients have and what recourse does the neighbor have if a developer were to tear it down?
2 Answers from Attorneys
Re: prescriptive easment
The answer to your question is going to depend upon where the property lines lie; the scope of use of the area since 1926; the nature of the use since 1926; among other things. It's not as simple as one owner now deciding that the best use of the property is to build two more units where one now stands. If the adjacent owner has enforceable access rights via an easement, then she may be able to stop the development. These are all issues that your buyer should be made fully aware of and agree to before signing off on the purchase. When in doubt, disclose.
Good luck.
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Re: prescriptive easment
The most obvious solution here is to assume there are two prescriptive easements, one in favor of the owner who owns 3/4 of the driveway and which allows him to use the other 1/4, and the other in favor of the guy who owns 1/4 of the driveway and uses the other 3/4.
Both neighbors need each other's land. This should be an easy matter for them to agree upon and put into a recordable instrument. The easements probably already exist, by prescription as you suggest, so neither neighbor would be giving up any right he or she already has in making a reciprocal grant except the right to be a litigious jerk.
I would recommend having a licensed surveyor make a map of the easements; this will help make it recordable; then the neighbors sit down with an attorney who writes up a simple agreement; both sign before a notary, and then you record. X grants and easement to Y, and Y grants an easement to X, in the area enclosed by the dashed lines on the attached map.
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