Legal Question in Real Estate Law in California

I have a private road on my property which leads up to my neighbors. Both our deeds include the word private road. However, the private road doesn't physcially exist for the past 15 years. Both my neighbor and I have other legal entrances to our homes which is not accessed by the "private road" in our deeds. San Diego County has a 52' setback which probhibits us from building anything within the 52' of a private road that does not physically exist. County told us the easiest way was to have our neighbor deed back the private road to us. He is willing to do this as long as he is compensated for the private road that is on our property and he has not accessed, used or was aware of until we asked. Do we have to pay him for it? Can we sue to have it deeded back to us?


Asked on 9/10/09, 12:44 am

3 Answers from Attorneys

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

How much compensation is being asked? If it is reasonable, paying it (in exchange for a properly drawn up quitclaim deed) would be preferable to incurring lawsuit costs (and perhaps losing!) and having an angry neighbor.

There is a law in California under which a property owner can, sometimes, free his land of old, unusued easements. It is Civil Code sections 887.010 to 887.090. This private road seems to be an easement. However, Section 887.050(a)(1) requires 20 consecutive years of non-use, and Section 887.050(a)(3) requires 20 consecutive years without the recording of any new documents making reference to the easement. You mention non-existence of the road for 15 years, but you'd need to meet several 20-year tests to prevail in court. The law is not self-executing; you need to file and win a quiet-title suit relying on this law to produce the effect of legal abandonment.

Finally, the neighbor could derail your quiet title suit at any time up until the judge renders a verdict in your favor by recording an notice of intent to preserve the easement as provided in Civil Code section 887.060, which he probably would if his lawyer was on the ball.

Read more
Answered on 9/10/09, 12:18 pm
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

You may sue to remove the easement. Contact me directly.

Read more
Answered on 9/10/09, 7:43 pm


Related Questions & Answers

More Real Estate and Real Property questions and answers in California