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  1. #1
    Join Date
    Oct 2009
    Posts
    1

    Default Prescriptive Easement for a Driveway in California

    I'm currently in escrow to purchase a house in California and was wondering if I can get your advice. My neighbor would like me to reconfigure my garage door entrance. Please read the following. Do I have a prescriptive easement in place given the following situation:
    1) Private Road through several lots is an recorded easement in 1939 (house built in 1939)

    2) There is a 9 square foot encroachment onto my neighbor's property from the private road (established easement) to the entrance to my garage.

    3) Neighbor granted original owners permission over 25 years ago to construct the garage entrance in that manner where the only way to egress and ingress onto the private road is through the 9 square foot encroachment over her property.

    4) Five years ago when the house was for sale, the neighbor wrote a written letter to the title company stating that the 9 foot encroachment was her's and that she didn't want anyone cross it, but I believe the previous owner continue to do so.

    Is there a prescriptive easement in place? Neighbor is willing to give a grace period of three years for the new owners (me) to reconfigure the garage door entrance. Estimates for this reconfiguration is $120-135K.

  2. #2
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Prescriptive Easement for a Driveway in California

    In California, the period of adverse use must be at least five (5) years. The claimant of an easement by adverse possession must also pay the taxes due for the five (5) year period if it has been separately assessed. California CC 1007.

    You may have a problem. Your neighbor gave permission to use the land, so an "adverse" and open use situation, in my opinion, is out of the question, so may be a prescriptive easement.

    IMO, I would not close on the property until the "Seller" secures an permenant easement or pays to reconfigure the garage.

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