OCT Main Our Columnists Ask Mike Easements Tuesday May 13th 2008
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Ask Mike
The information contained in the ASK MIKE column is provided for general information purposes only and is not intended to be a legal opinion nor legal advice nor is it intended to be a complete discussion of all issued related to the law. No attorney client relationship shall be deemed  to arise hereunder. Every individual's factual situation is different and you should seek independent legal advice regarding specific situations. All information contained within pertains only to California law unless otherwise noted.

Easements

Question 1
Question 2


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Question #1

Question:


We would like to know what to do in the following situation:

We have a piece of land in Northern California which we haven't built on yet. We verbally granted our neighbor permission to drive his car on the strip of our property adjoining his and also park his car there. There is no written easement, nor has any other person been given any rights to use our property. Unfortunately, we do not live close by.

What must we do to assure that:

  1. we are able to revoke the neighbor's use of the property when we build

  2. we are able to prevent other from driving over our land and creating a precedent for use, or even a hostile easement.

Answer: 

Thank you for your question regarding your neighbor's use of your land. The first thing to do would be to write your neighbor a friendly letter, simply outlining the terms of your agreement, and making it clear that you reserve the right to revoke his use of your property at any time. You should send it via certified mail, so that you will have proof of receipt if it ever becomes an issue. Such a letter would serve to deter him from later trying to assert a prescriptive easement over your property, because in order to do so, he would have to prove that his use was adverse to you. If you've given him permission, then his use of the property could not be adverse to you as a matter of law.

    The situation is a little trickier when it comes to third parties, however. If a third person uses your property for a period of five (5) years, and the use is "open, adverse, and notorious", it could potentially ripen into a prescriptive easement. It doesn't matter whether you were actually aware of the use or not; the fact that the use was open and obvious to the world would suffice.

    From time to time you may have seen little plaques in sidewalks that say something like "Private property. Permission to pass over revocable at any time". The purpose of these plaques is to prevent someone from trying to a assert a "public easement" by prescription. Unfortunately, whether posting such a sign on your property would be sufficient to prevent some third party from claiming an easement would depend on the surrounding circumstances. While posting a "private property" or "no trespassing" sign would be evidence that anyone using your property does so with your permission, it is not necessarily conclusive.

    There is a code section which attempts to deal with this situation, however. California Civil Code Section 1008 provides that if a property owner posts a sign reading "Right to pass by permission, and subject to control, of owner", then no one will be able to claim an easement by prescription. This notice must be posted at each entrance to the property, OR at intervals of no more than 200 feet along the property boundary. Unfortunately, this statute has not yet been tested in court, so it's difficult to say how a court might rule in a particular situation. However, posting such a sign would at least be evidence that the owner attempted to comply with the statute in order to prevent third parties from claiming prescriptive easements over the property.

    Please note that the foregoing is intended as a general overview of the law of easements, and is not intended as specific legal advice. Since cases involving prescriptive easements tend to be very fact specific, you should consult with your own attorney who can give you specific advice tailored to your particular circumstances.

question date: 3-31-03 Top of Page - Table of Contents

Question #2

Question:


I have a couple questions about an easement that I have with another homeowner. As of right now, the easement in question is about the size of a hallway (4 or 5 feet wide) between the garage wall of my house and my neighbor’s fence/property line. What I think is weird about this easement is that my neighbor’s property is raised, about 4 feet higher than mine. The property is mine but he has almost all of the rights to it. The only rights that I have are water drainage and the ability to use it as a walkway. This easement runs the length of my house and down my driveway to the street. My questions are: 

1.      What is the purpose of an easement?

2.      Is there anything that I can do to overturn a declared easement in order to have all rights to that piece of property?

Answer: 

The shorthand answer to your question is that an easement is a legal right to use the property of another, for the purposes specified in the easement document. To determine what that is, you would have to get a copy of the deed which either granted or reserved the easement, in order to examine its language. Typically, easements are granted or reserved for such purposes as ingress, utility lines, etc.

Unfortunately, if the easement is still being used by the holder, there is little that can be done to get rid of it, short of getting the holder to deed it over to you. If it hasn’t been used for a certain number of years, you might be able to bring a suit to quiet title to your property based upon an abandonment of the easement. However, you would have the burden of proving that your neighbor ceased using the easement with the INTENTION of abandoning its use in the future. This is usually a very difficult burden to meet.

My best advice would be to consult with your own attorney who could examine the easement document, and give you specific legal advice tailored to your particular circumstances.

question date: 4-22-02 Top of Page - Table of Contents
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