CA Real Estate Attorneys: talk to me about "prescriptive easements"

[ard]

tl;dr: I am considering buying a property and am concerned about a so-called "prescriptive easement" having been created on the subject property. How do I figure out whether such an easement has in fact been created and how do I remedy it?

Reference the diagram below.

I am considering purchasing property "A". It abuts a "flag lot", property "B", which is raw land. The owner of property "C", adjacent to property "B" has a vehicle storage building at the back of their property and is unable to access the "main road" by traveling across the surface of their property (I believe their residence blocks access - don't ask me why they built a vehicle storage knowing they couldn't access it over the surface of their property). The owner of property "C" has installed a gate at the side of their property and paved across a portion of property "B" so as to connect to the existing driveway of property "A" for the purpose of driving vehicles in and out of their storage facility.

How do I know whether the owner of property "C" has acquired a prescriptive easement to use the driveway of property "A", the property I am considering purchasing? I have not spoken directly with the current owner of property "A" or property "C". The agent representing the seller of property "A" is either blissfully ignorant or intentionally playing dumb - I had to explain to them what a prescriptive easement is.

If a prescriptive easement in fact exists is it durable across property ownership transfers? What are my remedies?

Searching for prescriptive easements in California I found this document explaining prescriptive easements - IDK whether it has any legal standing. I do know that the paved portion has existed for at least 5 years, meeting requirement (1) in the document. I believe the usage of the paved access and the driveway of property "A" was "open and notorious", meeting requirement (2). I do not know if it was "hostile", which I interpret as done without seeking permission.

I know this is a long shot and I may eventually have to consult an attorney specializing in California Real Estate law but my fellow Pelicans have surprised my in delightful ways in the past and I never say never.

Many thanks in advance.

[Bill Douglas]

I'm not an expert. But... It looks like one of these situations that can turn sour and become VERY stressful for no apparent reason at all.

[KFC911]

I'm not familiar with "prescriptive easements", but have dealt with "ingress/egress" easements here .... and CA might be different. The register of deeds in that county is the first place I would check to see if an easement has in fact been legally registered and I would definitely consult an attorney that knows the issues there. Good luck!

Who owns property B and what is shown on the deeds for A and B?

One other thing .... properties can't be "landlocked" but just because C has a house in the way doesn't make it such imo.... that's their problem and likely a driveway "could" fit between the C property line and the house too.

Neighbors suck

Check the R of Deeds web site... most info is online too.

[wilnj]

Originally Posted by Bill Douglas

I'm not an expert. But... It looks like one of these situations that can turn sour and become VERY stressful for no apparent reason at all.

Same, no expert but this looks like it has the makings of something ugly. Especially when what’s legal differs from how the previous and future owners/users of the property have been operating or will operate.

Good fences make great neighbors and there aren’t any fences in play.


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[greglepore]

What your talking about is referred to in most states as "adverse possession" but Cali uses the prescriptive easement term (which actually means something else in most states, but that's a digression).
I'm not a California atty, but in most jurisdictions once an easement is established it would be transferable with the "benefited" property unless there was some written document saying otherwise.
The "hostile" portion of the test is almost always the crucial inquiry, and I'd seek out some indication that someone in the chain of title can indicate that they gave permission to use A's driveway if you intend to terminate the easement.

[icemann427]

Make your purchase contingent upon your sole satisfaction of this issue. As well, once you enter escrow for the purchase, the issuing company of the title insurance policy will give you a preliminary title report, which report should include every encumbrance that affects the subject property. Upon your opening of escrow, make sure your realtor (or just request it, yourself) tells the title company that you want every recorded document for each and every encumbrance as part of the PTR.

With that said, however, a prescriptive easement does not necessarily have a recorded document memorializing it, and as such, would not show up in a PTR. I do not know current law, but many years ago a prescriptive easement was perfected (of force) if the benefitting party has had continuous use of the area of the supposed prescriptive easement for a seven (7) year period. Once the seven (7) year period has been reached, the easement is pretty much ensured to the benefitting party.

[Por_sha911]

Unless that property is for commercial use or the deal of the century, I'd pass. Too many landmines.

Even if you can terminate the easement, you now have an angry neighbor. Depending on how much of a butthead he/she is, you could deal with harassment or baseless legal challenges (which will cost you time and money). Also, what happens if property C owners sell and the new folks are jerks?

[jyl]

Certainly will want a RE lawyer’s help.

One sneaky thing I might consider doing, if I were the RE lawyer, is asking A and C to both sign a document stating C has used A’s property with A’s permission.

[jamesnmlaw]

Pay for written advice & written opinion from a CA attorney. Yeah, gonna cost some $s but you'll know where you stand.

[Por_sha911]

Even if you have written legal docs and it all buttoned up, that doesn't eliminate hard feelings from the current or future owners of C. Life it too short to have that hot mess. You may hear it after every drunken party (theirs not yours).

[jamesnmlaw]

Originally Posted by Por_sha911

Even if you have written legal docs and it all buttoned up, that doesn't eliminate hard feelings from the current or future owners of C. Life it too short to have that hot mess. You may hear it after every drunken party (theirs not yours).

Very true, Por_sha911. Just thinking of "buying" the CA attorney's malpractice insurance, perhaps a title search. Sounds like nasty business and this all could get real expensive, real fast. I sure would talk with the neighbors. May be nothing, may be a shiddy mess. Personally, I'd never buy a property with a prescriptive easement. However, doesn't look like the purchaser would/could be losing much land.

[Tobra]

So there is one gate, and it is controlled by the owners of property C.


Oh hell no.

[john70t]

Paved for 5 years with gate opening onto Property A? That looks like “continuous open and notorious”

https://schorr-law.com/prescriptive-easement-transfer-with-the-sale-of-the-property/
When a Prescriptive Easement Has Ripened

In the event a prescriptive easement has ripened, it generally transfers with the sale of the property, even though it will not appear on title. First, the transfer of propertyusually includes all of the rights, privileges, powers and immunities incident to the ownership of the property. In addition, once a prescriptive easement ripens, it will continue in perpetuity, unless it is otherwise terminated.

[john70t]

Different states have several types of Deeds available.
In Michigan we use Warranty Deeds by default. Not sure how that works with P.E. but it's more protection.
https://openescrownow.com/know-types-of-deeds-and-taking-title-in-california/

I sounds like 'Owner A' has been legally bullied enough by 'Owner C' that they are moving instead of fighting.
Owner C is rich and stupid enough to waste gobs in legal fees instead of fixing his/her own problem.

[matthewb0051]

Looks like prongs 1 and 2 are met. Hostile? Not sure. Highly recommend speaking with an attorney. But I'd run from this. Had a neighbor in NY that shared a driveway split down middle to their carriage houses in the back. Total nightmare scenario that ended up with a fence built down the middle to stop the carnage. Your situation looks worse.

Give this a read:

https://www.leg.state.nv.us/App/NELIS/REL/79th2017/ExhibitDocument/OpenExhibitDocument?exhibitId=30004&fileDownloadName=0405AB380_ande_handout.pdf

[schamp]

For adverse possession in Georgia, must have, open, hostile, notorious, and continuous. Another thing, and I have heard a Judge say this, "you don't have a prescriptive easement unless I tell you that you do". In other words a claim of a prescriptive easement.
I would ask the question of the other property- under what legal right or authority do you access your property.

[KFC911]

The owners of properties A, B, and C have created this "mess" .... I would remain

D - none of the above

Life is too short....

[Danimal16]

You may find this useful:

(Attorney is in Beverly Hills)
https://aoausa.com/how-to-prevent-a-prescriptive-easement-on-your-property/

Our utility was constantly removing encroachments. In California you cannot prescript an easement on a public entity. I have seen some real doozies. Like the jackass that constructed a garage over a 48 inch gravity collector (it happens). His homeowners insurance was not too happy about that one.

I also had a damn operations manager that bootlegged an 8-inch line across private property that was discovered 10 years after it was put in when the property was developed. We moved the line because our board had the political connections to the developer. Not to mention the Ops sup did it with the wrong color of money. He was eventually "retired".

[ard]

First, thanks for all the responses - very helpful

To answer a few questions that have cropped up

1. This is a residential property my family and I would like to move into
2. It seems that a "prescriptive easement" is the same as taking "adverse possession" (I think - I am not an attorney so I may be wrong)
3. I will ask my real estate agent to speak with the seller's agent to see what if any paper trail exists about property C being permitted to access the driveway of property A

It appears there are only 2 viable choices were I to purchase the property:

1. Negotiate as a condition of sale, a recision of any agreement allowing the owner of property C to access the driveway of property A (practically speaking I would make it a contingency in the purchase contract that the seller deliver a notarized affidavit signed by both parties that any granted access is revoked within N days of contract acceptance). This presumes that the owner of property C has not yet acquired "adverse possession". This option would likely result in being on a war footing with a neighbor right off the bat. Not something I relish.
2. Accept the existing arrangement and preempt a possible "prescriptive easement" (assuming one hasn't "ripened" yet) by explicitly granting access with the right to revoke it, in writing. I don't love that idea because maintaining the driveway (it's long and sloped) would be on my dime while the neighbor could use the driveway at their pleasure and convenience.

TBC I really like many features of this property but I am conscious about emotions (hopefully) not clouding my judgement.

[Por_sha911]

Can C sue you if the driveway is not properly maintained or cleared?