Legal Question in Real Estate Law in California

I have a shared easement in Nevada County. My neighbor has been doing business out of his home for the past year. He is leasing his land to another company. The owner of the prescriptive easement to his property is no longer giving the person leasing the land permission to use the easement to access the property. My neighbor is wanting to improve the existing easement by bringing it (the one that I share with him) up to the required code for business (not residential) use. We are being told that they are going to put it in so we can either sign off any rights to the easement (which would land lock the property) or we will owe for the improvement. Can he make these improvements without my ok and can he legally require me to pay whatever the cost would be?

Asked on 4/03/21, 8:18 pm

1 Answer from Attorneys

Timothy McCormick Haapala, Thompson & Abern, LLP

I'm afraid your description of the situation is too confusing to provide an answer. For example no one can own a prescriptive easement. And easement can be owned and ownership can be obtained in a variety of ways, including by prescription, but unless a court has ordered an easement by prescription, there is no prescriptive easement. If a court does order a prescriptive easement has been created, then the owner of the burdened property has nothing more to say about it. They cannot stop giving permission to use the easement. In addition, prescriptive easements must be obtained by "hostile" use. If the owner of the burdened property gives permission, there can be no prescription. So either there is a permissive use, OR a prescriptive easement, OR grounds for obtaining a prescriptive easement that has not yet been established.

Turning to the shared easement (which seems but I am not sure is different from the prescriptive easement) I cannot tell from your description who owns what, other than it seems you own a shared easement over some property belonging to ???? Is it the person who wants to improve the easement? Someone else? Without knowing where each property is in relation to the others and who owns what parcels and what easements located where, it is just not possible to answer your question.

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Answered on 4/03/21, 9:37 pm

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