Legal Question in Real Estate Law in California

Help! I told my new neighbor that she has no legal right-of-way over my private forest road and the new neighbor continues to adversely use my private road to get to her new home on the adjoining property. I recently posted new Civil Code 1008 signs on my private forest road. The signs read "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code" to prevent my new neighbor from ever getting a prescriptive easement over my property.

Now that I have posted the new Civil Code 1008 signs on my property can I still stop her from accessing my private road to get to her new home on the adjacent property? Or am I required by law to allow her to pass over my private road now that I have posted the Civil Code 1008 signs along my private road?


Asked on 12/28/13, 6:33 pm

3 Answers from Attorneys

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

I would say there are multiple possible solutions here, and selecting the most appropriate to try first would depend upon some additional facts and situation-specific information.

The possibilities include (1) talking to her again, perhaps with an appropriately-elevated tone of concern and upset, but avoiding anger, to get a better understanding of what rights she thinks she may have to use your road; (2) installing gates, possibly with locks, or with electronic code actuated openers; or (3) you can always get another party's attention to your rights and demands by filing an appropriate lawsuit, which is not always 100% effective, potentially more costly than (1) or (2), and not recommended as an opening ploy in a dispute between neighbors. However, in a worst-case scenario, you can retain a lawyer to file a suit seeking, perhaps, an injunction against trespass, money damages, a judicial declaration of your rights, etc.

Finally, I should caution you to be pretty darn sure that the new neighbor doesn't have some kind of right to use what you think is a private road. Among other possibilities, the neighbor might have a valid claim to an "easement by necessity" or some other rather unusual right to use what you think of as a private road.

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Answered on 12/28/13, 7:07 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I would say there are multiple possible solutions here, and selecting the most appropriate to try first would depend upon some additional facts and situation-specific information.

The possibilities include (1) talking to her again, perhaps with an appropriately-elevated tone of concern and upset, but avoiding anger, to get a better understanding of what rights she thinks she may have to use your road; (2) installing gates, possibly with locks, or with electronic code actuated openers; or (3) you can always get another party's attention to your rights and demands by filing an appropriate lawsuit, which is not always 100% effective, potentially more costly than (1) or (2), and not recommended as an opening ploy in a dispute between neighbors. However, in a worst-case scenario, you can retain a lawyer to file a suit seeking, perhaps, an injunction against trespass, money damages, a judicial declaration of your rights, etc.

Finally, I should caution you to be pretty darn sure that the new neighbor doesn't have some kind of right to use what you think is a private road. Among other possibilities, the neighbor might have a valid claim to an "easement by necessity" or some other rather unusual right to use the road. The situations under which someone can claim an easement by necessity can be researched on line.

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Answered on 12/28/13, 8:34 pm
Anthony Roach Law Office of Anthony A. Roach

If you have given permission, even with a Civil Code section 1008 notice, you have given permission for her to cross your land, but the period during which permission has been given will not legally ripen into a prescriptive easement. I suggest that you speak to a competent real estate attorney near you to first determine whether your neighbor has any valid claims to cross over your land, and if not, the best manner to handle the situation.

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Answered on 12/29/13, 4:38 pm


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