Legal Question in Real Estate Law in California

Re: Does an easement exist and can it be rerouted?

You are puting the cart before the horse. First, get the prelim and see what it says.

Next, talk to the seller of the property and ask him about the situation.

Finally, call the neighbor and discuss the matter in a non-threatening manner (you catch more flies with honey than with vinegar).

If all else fails, whether there is a prescriptive easement or not will depend on all of the facts, which can not be ascertained by your question here.

Re: Does an easement exist and can it be rerouted?

It would not be unusual for the deed to the servient, or burdened parcel (the one you're thinking of buying) to make no reference to an easement across it. Among other reasons, the easement could have been created at a later date. Also, the easement may have arisen from one of several causes other than express (written) grant, dedication or reservation, such as prescription, necessity or implication.

Easements by prescription arise from adverse use over a five-year period. Easements by necessity or so-called implied easements result from an earlier subdivision where an otherwise-landlocked parcel would have been created but for the easement the law implies.

These concepts of easement creation have many technical nuances and only an attorney with a fair amount of experience in the area can competently advise with respect to the existence of these usually-unwritten, unrecorded easements.

Under the circumstances you describe, I think it is rather likely there is some kind of easement, although as one of the attorneys mentioned, the use of the road across this lot MIGHT upon close examination of the facts turn out to be nothing more than a license, which is probably revocable, although not always, because there are isolated examples of licenses ripening into easements by estoppel through the carelessness or indifference of the grantor of the license.

The general rule about relocating easements is that once its location is fixed or established by use neither the servient parcel owner nor the easement holder may unilaterally relocate the easement. An exception is when the grant or easement gives an express right to relocate. It is also remotely possible that a court might order relocation of an easement under hardship circumstances, but I find no California case where this happened.

Re: Does an easement exist and can it be rerouted?

All way too complicated a set of issues without more detail. The more to the point why, why all of these questions and why you want to reroute the road. If this is raw land, is it raw land as to the neighbor also would do they have improvements upon the property. Why don't you just ask them to say if they would mind if the road were rerouted so that it met their property at a different point. If you wish to consult with the I have numerous other questions before I could advise you. I'm in the San Francisco Bay Area at 925 -- 945 -- 6000

Re: Does an easement exist and can it be rerouted?

Why not ask the owners information re these rights. If permission given, ie., they have a license, that license can be withdrawn, however if open and notorious use, they likely have a prescriptive right Try to work with your eighbor. They may sue for an easement if denied. They would have to state in their suit what their theories are. Try to avoid this. Seller should disclose such info to you upon sale.