Legal Question in Real Estate Law in California

how can we replace a detached garage

that is on our property but the neighbors

claim it's half theirs because of an easement on our driveway which gives

them 5 feet of our driveway?

Asked on 9/11/10, 8:53 am

4 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

The fact that they have an easement on your property does not give them the right to half of your house or garage. The easement should be carefully defined in the document that created the easement.

If the easement does not give them express rights to the detached garage, you can replace the detached garage, assuming you comply with an application for a permit with your Department of Building & Safety for your area.

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Answered on 9/16/10, 8:57 am
Timothy McCormick Schneider, Holtz & Hutchison

Charge them half the replacement cost. Point out to them that by law they are liable for maintaining the property they have an easement over, not you. That will probably shut them up.

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Answered on 9/16/10, 8:58 am
Daniel Bakondi The Law Office of Daniel Bakondi

I have litigated easements, adverse possession, boundary doctrines in court successfully. I would need to charge you for a consultation but I know these issues fairly thoroughly, having represented both parties seeking to defend his property and those seeking to gain property. Often, even surveys do not control, because the law takes precedence over a survey and tax map. This could be an issue that if not properly dealt with, increases the likelihood that you may be sued, and how people in this type of situation communicate regarding such matters may be material to the outcome of their case.


Daniel Bakondi, Esq.

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The Law Office of Daniel Bakondi, APLC

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Answered on 9/16/10, 9:52 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

As I understand the facts, you own a garage that sits entirely on your own property, and is accessed via a driveway, a portion of which has about five feet of easement in favor of the next-door neighbor.

Assuming the foregoing is correct, and further assuming, as is likely, that the easement agreement does not give the neighbor any rights to the garage itself, the neighbor has little to no right to have a say in the replacement of the garage. In fact, the neighbor's rights, if any, would be limited to a right to expect that the reconstruction project does not unduly interfere with their use of the 5' easement.

Now, having said that, I should add that my answer to the effect that the neighbor has no say in the garage replacement is based on assuming, among other things, that the garage is not "on" the easement. If the 5' strip includes not only some or all of the driveway, but also some of the land the garage sits on, it might be necessary to inquire into the purpose of the easement. The easement most likely is for access (or ingress and egress), but there is a slim, outside chance, requiring inquiry, that the easement also includes, or could be argued to include, some right to the garage itself. The easement agreement might even make a specific allocation of garage maintenance and replacements rights and responsibilities. This is, to be sure, very unlikely. Even so, the replacement of the garage when it needs replacement probably wouldn't be precluded, since easements need to be maintained.

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Answered on 9/16/10, 10:40 am

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