Legal Question in Real Estate Law in California

Re: Protecting easement from eminant domain

it appears this easment is a prescriptive easement, that is it is not in writing or recorded. if this is the case get a good attorney who is expert in real estate/litigation to file suit to enforce the easement and have the court order it on that goes with the land and recoded if you cannot settle with the owner which would be preferable both before the suit needs to be filed or even after. you should not do this yourself, no way --- good luck

Re: Protecting easement from eminant domain

The developer should be aware of the easement, and you should attend the meeting to make sure everybody knows about it. You should express your concerns about the easement, and what you believe is the most fair way to settle the matter. What is the easement for? the city or the adjacent property? Please let me know.

Re: Protecting easement from eminant domain

You do not state whether or not this is a recorded easement; is there an actual recorded instrument? Or are you calling it an easement simply because you have used it for some time? There is a big difference; if there is a recorded easement and the developer's title company did not pick it up, the developer has recourse against them; on the other hand, if it is not a matter of record, then you have no protection without having a court determine there to be an implied or prescriptive easement, etc. DEFINITELY go to whatever hearing is scheduled to not only learn what you can, but to assert your claim to an access via that easement.

Re: Protecting easement from eminant domain

As you have probably gathered from the three previous answers, easements can be created in a number of ways. These include express grant or dedication, express reservation, prescription, implication (or necessity), and estoppel.

Once created, the method of creation has relatively little to do with the easement's validity and permanence. The problem is that easements can be created by means which don't involve a written, recorded instrument, and when this happens, adjoining owners, buyers, and other potentially-interested parties have no official notice of the existence of the easement.

In addition to official notice, however, there is also "constructive notice," i.e., conditions and circumstances that would put a careful observer on notice that an easement probably exists. For example, if there are railroad tracks through the cemetery, the railroad company probably has an easement.

In your case, I assume your driveway easement is on the parcel acquired by the builder. If it is a recorded easement, the builder will be on notivce of its existence as a matter of law, and defending it from conflicting uses (such as being fenced off or having a home built on it) would be relatively easy. Unless the developer is a real dummy, he'll plan around the easement and you'll have no problems.

If, on the other hand, the easement isn't recorded, the developer probably still has constructive notice of your easement, since an inspection of his newly-acquired (or to-be-acquired) parcel would show the existence of your driveway, and he might even see you driving in and out on it. Your informing his surveyor of the easement is probably also adequate notice, although harder to prove.

Actual or constructive notice is very important here; a buyer of property without notice of the easement probably takes the land free and clear of the easement. See Civil Code section 1214 and the California Supreme Court case Pollard v. Rebman, decided in 1912 and reported at 162 Cal. 633.

Attending the meeting is very much recommended. This will give you an opportunity to discuss the easement issue with the developer and also to inform the council or commission.

Until a week ago, I would have said that eminent domain is not an issue here, but a recent Supreme Court decision suggests that public condemnation for private commercial development is permissible in limited circumstances. I still think it is a very remote possibility where the project is a 30-house development.

In sum, if your easement is challenged, you will need a lawyer, but if the easement was validly created by ANY recognized means, it should be defensible due to actual or constructive notice.