I Have An Implied Easement, Yet My Neighbor Refuses Access

[siskiyoushasta]

I bought a 40 acre parcel in Mendocino County, California 3 years ago. There was no recorded easement, just the straight title. Back in 1963, it was part of a much larger property owned by the "Hogdes". In 1984, the Hodges sold part of that Property to the "alberas" and the other two 40 acres to me, and one to someone else. The only road access is through the Alberas, in which there is a chain across the road that is padlocked. Upon asking the owner for a key to the lock, he refused.
I know that there is an implied easement here, and I've written a letter to the owner explaining so, I've also called them numerous times. They will not give me permission to use the roads.
My question is, can I just put my own lock on that gate and go through, and let them deal with the legal hassle, or should I sue him for access. in the meantime, all I want to do is get to my property. Am I trespassing?

I've already spent thousands on a lawyer for advice. I'm out of money and need better advice

Thank you,
Lisa

[LawResearcherMissy]

I've already spent thousands on a lawyer for advice.

And he didn't answer your very simple questions? What, exactly, did he tell you whilst cashing your checks?

I'm out of money and need better advice

Not everyone here - not even most people here - is an attorney. We're largely just law enthusiasts.

Tell us what your lawyer told you, and we'll see what we can dig up from there. Personally, I'd sue for access and be done with it, but depending on your details, that might not be the most expedient route.

[seniorjudge]

Lisa, have a title search run on your real estate and on the bad neighbor's real estate.

An "implied easement" is just that; to make it "real" you must file a lawsuit against the bad neighbor and win. That's where the title reports come in; the lawyer you hire will be able to tell (if the lawyer is halfway smart) at once if you have a chance.

You may also need a survey; but the title reports are a necessity.

And I would also like to know what kind of advice you got and why you paid so much money for it.

[siskiyoushasta]

The lawyer told me I clearly have the implied easement and if he does not agree I would have to sue for access. However, can I just go ahead and use that road anyway, am I trespassing? Can I just let the owner take me to court and have him lose? Dont I have the right to use the road?

Perhaps you could tell me what exactly the steps for sueing for access is.

thanks.

[seniorjudge]

The lawyer told me I clearly have the implied easement and if he does not agree I would have to sue for access.

And that is exactly what I told you.


Q: However, can I just go ahead and use that road anyway, am I trespassing? Dont I have the right to use the road?

A: You are trespassing until you establish your rights one of two ways: lawsuit (third time you've been told that) or he gives you written permission (preferably in the form of a quit claim deed showing the easement).\


Q: Can I just let the owner take me to court and have him lose?

A: Sure; you will look like the bad guy. But what do you think he will sue you for?


Q: Perhaps you could tell me what exactly the steps for sueing for access is.

A: See my prior answers. After you get the title reports and the survey, you hire a lawyer.

[Mr. Knowitall]

SJ, is it a trespass? Assuming the easement exists, even if not formally recognized by a court, there is a right of access. Or are you getting at the problem that, if called, the police are going to want to see "what gives you the legal right to enter" than they will be in an argument about implied easements?

One way or another, the person to be asking "What should I do until this is resolved in court" is your lawyer.

[seniorjudge]

Q: SJ, is it a trespass?

A: It probably is CIVIL trespass; I doubt that the cops would want to have anything to do with it. The cops will tell our poster that it's civil and she should get a lawyer.


Q: Assuming the easement exists, even if not formally recognized by a court, there is a right of access. Or are you getting at the problem that, if called, the police are going to want to see "what gives you the legal right to enter" than they will be in an argument about implied easements?

A: Right. I agree. Our poster (from what facts she gives us) probably does have an easement. The problem is that it has never been recognized.


Q: One way or another, the person to be asking "What should I do until this is resolved in court" is your lawyer.

A: Amen and amen.

[LandSurveyor]

So this access road has been used by you since 1984 without interruption until now. The access is across a parcel originally owned by the original owner of your parcel. Your "landlocked" parcel was created by the person who owned all of the property in question.

And help clear up the ambiguity in your post where you stated that you bought the 40 acre parcel three years ago, but you were sold two 40 acre parcels in 1984.

My advice (not "legal" advice in the sense of what an attorney would advise) is that you purchase the universal padlock skeleton key- a set of 36" bolt cutters and just remove the lock and drive to your property. If you have had access for 22 years, don't let anyone lock you out. Don't ask for permission as that implies that your use is permissive, which could be fatal to your interests.

And find another attorney who will at least be willing to write a letter stating the obvious, for a lot less than several thousand dollars.

[siskiyoushasta]

yes, I apologize I was unclear. in 1984, Albera puchased a part of the property and did not want the part that was later sold to me in 2005. That transaction in 1984 landlocked the parcel. Now that i'm the new owner, the Alberas refuse me access. Since there was a common grantor, there is an implied easement.
I just wanted to know, since I am probably going to have to sue for access, if I can cut the lock and go to my property while this whole thing goes through, and if that is trespassing.

[seniorjudge]

...
I just wanted to know, since I am probably going to have to sue for access, if I can cut the lock and go to my property while this whole thing goes through, and if that is trespassing.
...

Yes...it is trespassing.