Legal Question in Real Estate Law in California

Re: Request by my neighbor to build underground pipe on my property

The pipe's presence on your land can fall into one of at least three categories: a trespassing encroachment, a license, or an easement.

If it were placed there without your knowledge, or perhaps with your knowledge but without your express consent, it would be a trespass.

If you gave oral permission, either expressly or by possibly by inference, it would most likely be considered a license.

A written agreement for the pipe could be either a license or the grant of an easement, depending upon the language of the agreement, i.e., what it showed about the parties' intent.

The differences between the three:

A trespass can be abated and the trespasser is liable for damages.

A license legitimizes the presence of the pipe. Licenses, however, are personal in nature and do not ordinarily "run with the land." Thus when either you as the licensor or the neighbor as the licensee sold and moved, the license would terminate and, unless replaced by a new license, the pipe would become a trespass. Licenses are also usually revocable at will, although early termination of a license may also be a breach of a contract and incur a claim for damages.

An easement is a near-permanent right that will ordinarily continue in existence for the benefit and to the detriment of succeeding owners.

Whether a written agreement is a license or an easement will depend upon the terminology used and the overall intent shown. In doubtful cases, the semi-permanent nature of the thing installed (an underground pipe) would lead a court to conclude that the parties intended an easement.

A trespass can ripen into an easement through prescription after five years.

I would suggest having a local real-estate lawyer draw up a written license agreement containing terms acceptable to both covering location, installation, maintenance, your right to terminate without liability, etc.