Can You Get a Prescriptive Easement for a Driveway Encroachment

[a34ac]

My question involves an easement in the state of: CALIFORNIA (BERKELEY / OAKLAND)

Hi there,

Basic facts:

1. I am purchasing a house. My driveway encroaches on the neighbor's property by a foot.

2. The driveway is paved and has been there for 10 years.

3. There has never been a paper agreement to let my house (my future house) encroach on the other house by this foot. I guess it's just always been implied. It has been stated at times, but never formally.

Do I have any legal rights to keep my driveyway the width that it is? Or can my new neighbor require me to decrease the width by a foot?

Thanks in advance! Much karma will come your way for your assistance. I have an unlimited amount of it to send to you

[Newtons_Apple]

You may have a case for prescription; after all the drive has been in place longer than the statutory period (5 years).

As for fulfilling the other requirements, the best person to answer that question is a local real estate attorney who is knowledgeable concerning adverse use. Here is a good article to get you started.

You should be made aware that any adverse claim is not a cheap venture. To pursue your claim, you will need an attorney and you will need to go to court if that is the route you wish to go. Just to be clear, we're likely talking tens of thousands of dollars here.

If it was me, and it was for 1 foot of land, I'd approach the neighbor, explain the situation and my desire to avoid litigation costs (for the both of us), and attempt to hammer out an easement agreement for the use of that 1 foot of land. In this situation, you would probably still want to retain an attorney, and most likely you will need to retain a surveyor, but the costs would still be markedly reduced as opposed to going to court.

Good luck.

[Stephen Calder]

You don't have any legal rights at all until the purchase is finalized, but I think you realize that.

The issue here will hinge on whether the 1 foot of driveway was allowed to remain by permission or not. If it was permissive, then no adverse rights are accumulated. And if the owner being encroached on was aware of it, then right off the bat it seems that the use was likely permissive.

If you decide to press for a prescriptive claim to the 1' of driveway you will have to do so through the courts. Therefore, I am sure you will come out far ahead financially if you just take a wet saw to the 1' of driveway.

Stephen Calder
Land Surveyor, not a Lawyer

[a34ac]

Thanks Stephen and Newton.

Yeah - the issue here is that this is blocking the home sale. Basically (for reasons I hope to understand later today or tomorrow) the title company won't issue insurance until the issue is cleared up and properly documented.

And I agree, the best result is just to come to an agreement with the future neighbor, but that is proving less than easy (so much so that we may just walk away).

Newton - re the tax issue - I think I know the answer to this question but lemme make sure I get it straight. These are just 2 side by side lots. Each owner has just paid whatever taxes the city has requested of them. In order to have a valid claim (legal or just from a negotiating standpoint), would the prior owners of the house I want to purchase have to have made sure they were paying taxes on this slice of driveway?

Thanks to you both.

Much karma flowing your way.

[a34ac]

Ooops.

I think there is one big failure here - this possession hasn't been adverse. It's been with the implied / oral permission of the person that owns the land.

I think. Feel free to correct me, but seems like I whiffed on this analysis.

[Stephen Calder]

Ooops.

I think there is one big failure here - this possession hasn't been adverse. It's been with the implied / oral permission of the person that owns the land.

I think. Feel free to correct me, but seems like I whiffed on this analysis.

Then, yes you are pretty much at his mercy concerning the 1 foot of driveway. If he won't make nice with you and let you continue the permissive use then you may be back to cutting off the encroaching foot.

Which is as it should be. It is his land after all.


Stephen Calder