California  |  Real Estate Law

Re: driveway dispute

You need to contact an attorney to investigate this matter and quiet title. Time is important. Time can provide your neighbor permanent rights with or without your approval, in fact, such right might already be theirs. Need more info to better counsel you. Call if you wish. Don Holben.

Re: driveway dispute

First, I note that you have what appears to be a Canadian postal code. My answer is based upon California law, although the laws of other jurisdictions with roots in the English common law system are likely to be similar on this subject.

An oral agreement by one to allow some use of his land by another would probably be classified as a license, rather than an easement. Licenses are normally revocable at will, and since they are personal in nature, the sale of the property by the owner who made the oral agreement to you would ordinarily act to terminate the license.

The fact that the neighbor claims an oral agreement may actually work in your favor, since it negates the element of "hostility" that would have to be proven to establish a prescriptive easement. You should try to get the neighbor to put the claim of an oral agreement in writing, or get witnesses to him claiming an oral agreement, in case you have to prove there was one. Beware, however, the possibility that the license was terminated by your becoming the owners and that, upon purchase, the neighbor's use and/or possession became "hostile" due to lack of such an agreement with you.

In that event, the five-year ownership figure you mention may become critical. The limit for suit to recover possession of real property is five years in California. After that, adverse possession ripens into ownership and adverse use ripens into prescription, provided certain other conditions are met. If the fifth anniversary of your ownership hasn't occurred but is fast approaching, you should contact an experienced real property attorney at once.

Finally, in addition to reviewing your own deed and your title insurance for any references to an easement, you should review, or have a title searcher review, the neighbor's deed, which should be recorded at the county recorder's office.

Although negotiation is always preferable to suit in disputes between neighbors, this matter seems beyond easy resolution. You may have to resort to the courts. If and when you are reasonably satisfied that the neighbor has no rights in the disputed strip of property, you can sue for any or all of the following: (1) to quiet title in yourselves; (2) for trespass or ejectment; (3) for an injunction preventing future trespass or annoyance.