Legal Question in Real Estate Law in California

Private road with no stated easement

I pulle the title report and previous deed, there are no stated easements on the private road in them. The neighbors think they have right to control the road, how do we protect our property and what exactly does the law state?If we need to get a lawyer, what type?

Asked on 8/21/06, 1:33 pm

2 Answers from Attorneys


Re: Private road with no stated easement

Restricting access may instigate litigation if the neighbors have been using it or need to do so.

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Answered on 8/21/06, 8:07 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Private road with no stated easement

The law of easements is fairly complicated, and there are at least a half-dozen ways in which easements can be created, as well as a large number of ways in which they can be extinguished.

In the circumstances you describe, the easement may be unrecorded and it may have arisen by "necessity" or by prescription.

An "easement be necessity" arises when land is subdivided, and the subdivider fails to make explicit provision for access by granting or reserving an easement in a recorded intsrument. The name "easement by necessity" is misleading, because you don't get one just because an easement is necessary to prevent you from being landlocked. Indeed, these easements should probably be called "implied easements" because their existence is legally implied from the circumstances. Still, there must have been a common grantor, somewhere in the past, of the burdened parcel and the benefitted parcel.

A prescriptive easement is one that arises, like title by adverse possession, through continuous use, without permission, over a period of five or more years. Whether the use meets the legal requirements can be a legally technical question that cannot be answered without an interview.

So, analyzing your chances of establishing a right to an easement will require further research into the title history of both parcels (or all parcels if the easement would lie on omre than one owner's land), and also inquiry into the circumstances of use over the last 5+ years to see whether a prescriptive easement can be asserted.

You need a real-estate lawyer, and the lawyer should (probably) first try to negotiate an easement agreement without necessity of suit, but if that fails, the lawyer would draft, file and prosecute a suit to quiet title in the desired easement, basing the suit on as many easement theories as may possibly fit the facts.

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Answered on 8/21/06, 10:20 pm

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