Legal Question in Real Estate Law in California

Re: Real Estate, public access to easements

You can send him a certified, return receipt "cease and desist" letter, explaining that it's private property, and not for his use. If he insists on trespassing, you can seek an injunction in court and monetary damages. You can also put up a "no trespassing" sign at the entrance.

Re: Real Estate, public access to easements

An easement is a special kind of property-sharing arrangement between the property owner and the easement owner, in which the property owner surrenders certain rights and privileges in his land to the easement owner. However, the arrangement does not create any rights whatsoever in third parties who were not "intended beneficiaries" of the agreement between the property owner and the easement owner.

There are easements which are created for use of the general public, but that is usually an intended result and not commonplace.

Members of the general public can, however, acquire unintended rights is your property by continued use over a five-year period. Such rights are called "easements by prescription" or "prescriptive easements," and the best way to avoid one is to put a stop to the undesired use before it has continued for five years. Another way to prevent a prescriptive easement from arising across your land is to give the trespasser written but revocable permossion to use the driveway (or whatever). This revocable license negates the element of "adversity" or "hostility" that is part of the requirement for obtaining an easement by prescription.

You might also consider installing a locked gate and giving the permitted users keys. This doesn't have to be forever, just long enough to convince the trespasser to use another route.

Re: Real Estate, public access to easements

If the easement is an express easement, the benefitted parcels will be usually identified in the easement grant. If your neighbor is not identified, or does not own the identified benefitted parcels, then he is a trespasser.

If your neighbor has not been using it for more than 5 years, you need to have him declared a trespasser. This will prevent any easements by prescription from arising.

Very truly yours,