Legal Question in Real Estate Law in California

Re: Unrecorded easement for a common driveway.

You've both, with the prior owners who used the driveway, established an easement. You get to use the neighbor's 5 feet and they get to use your 5 feet. Unfortunately you've got a screwball neighbor. I just finished replacing a block wall on my front lawn. When I was done the neighbor came over and showed me how they had deliberately built their wall one inch back from their property line, and I had built on that one inch. They never said anything when I dug tyhe footing and laid out the wall. And their great people who'll never say anything aobut it again. Hopefully your neighbor will wake up and smell the coffee. However, my guess is you've got a mental case for a neighbor.

Re: Unrecorded easement for a common driveway.

Easements are often classified by how they are created, e.g. easement by express provision (which can be by grant or by reservation), easement by prescription, easement by necessity, etc.

What you have would probably be considered an easement by implication, or an implied easement. Such easements arise from the obvious intent of a prior common owner of the two parcels. Courts are willing to graft an easement onto a land transaction in order to do justice in such cases, and frequently do. Easements by implication arise by operation of law, or an an implied term of the instrument of subdivision, and thus do not require separate written and/or recorded instruments.

The preferable way to handle this issue with your neighbor is to explain the principle in terms he can understand, or find him some legal material on easements by implication that he can read and absorb. If this doesn't work, and expensive but effective procedure is to hire a real-estate lawyer and file a suit to remove cloud or clear-title action. between neighbors, negotiation should always be attempted before lawsuit.

Re: Unrecorded easement for a common driveway.

The decades of use has established an easement, with his parcel having rights to use your driveway, and your parcel having rights to use his driveway. If he won't listen to reason, though (how does he plan to use his own 5-foot wide driveway?), you may want to establish the easement in court and record the judgment.