Legal Question in Real Estate Law in California

Re: Property easement

Number one, there is a significant element of risk here that the theories under which you might claim an easement won't work, or that establishing and enforcing easement rights will become time-consuming and expensive. So, be forewarned that this discussion is not an assurance of a favorable outcome.

You probably have a valid claim to an easement by necessity, or an implied easement, because the subdivision of land is presumed to be done in a way such that no new landlocked parcel results. Among the requirements for claiming an easement of this type are (a) the dominant and servient parcels were once a single parcel and then subdivided, and (b) at the time of subdivision, no other access to the dominant parcel was available, hence the subdivided "must have intended" to grant an access easement across the servient parcel. Hence the name implied easement.

The problems are (1) whether there was other access at the time of the subdivision, perhaps because the highways weren't then built or the county policy was different, and (2) whether denial of rights to a driveway really landlock the property - in other words, if you can walk in legally, is the property landlocked? (I don't know). You should investigate the process by which the county acquired the right of access from a former owner of the property. If the right of access to this land was taken by agreement or by a condemnation process, and a prior owner was paid for loss of the abutter's access rights, this makes a stronger case for landlocking.

The seller could also give you a recordable instrument acknowledging the existence of an easement, or granting an easement. The problem with this is that the lender could attack this as a fraud or as "waste" of the collateral (the land).

Possibly there is a prescriptive easement if use has been made of a route into the second parcel over at least five years. The problem here is that with common ownership of the parcels, such an easement may be extinguished.

Maybe the best solution is to work out a multi-party agreement where everyone wins. You get an easement of record, and some of the proceeds of the sale are applied to the balance due the lender, maybe enough to pay off the arrearages, in exchange for which the lender consents to the easement and agrees not to challenge it.

A better answer would require investigation of the history of the parcels, whether there has been use of a particular access route, and the amount of the loan and arrearages as well as the lender's attitude. I'd also want to see the contract of sale to see whether the seller has guaranteed or disclaimed access.