In California, please explain: prescriptive easement, easement by necessity and easment my implication. How many years do you need to use a private roadway that has access to 12 neighbors to have a right of use? What is that type of easement called? Is there a California Civil Code for these easements. On a road that has been used for the required amount of years, does it need to be used by the owner or could it be used by caretakes, friends to access property? We have owned a parcel since 1966 and trying to obtain a recorded legal roadway easement. San Diego County Land Use requires recorded roadway to get building permits. We have received roadway easments from all neighbors exept for two that are resisting. Please help.
An Easement is the right to enter and make limited/affirmative or restrict/negative use of land. An easement may be expressly reserved by the grantor, impliedly reserved by operation of law from prior use by a grantor who after severing property into two parcels, reasonably needs the easement for the dominant estate, by necessity where no other access to the dominant estate is possible, or by prescription, which requires hostile, open, actual and continuous use.
Your facts don't provide enough information to assess whether any of the above doctrines is applicable. If the roadway was used without the consent of the owner(s), then that suggests that a prescriptive easement may have been created.
Otherwise, to get an implied easement, you will need to show that the easement was intended by the parties at the time of the grant of title in your land to you. So, if the neighbor who is resisting did not grant you the land, then there will be no easement by implication.
As for necessity, you need to show that without the roadway, your property is landlocked and that no other reasonable means of accessing the property exists.
It is my understanding that if we have been using the road over a period of time, that we would have rights. What is the length of time? Does it need to be the owner using the road to access the property or can it be caretakers and friends over the required length of time?
The land is landlocked.
If your property is landlocked except for the roadway access, then you have an easement by necessity, which is created by operation of law. If you need that fact recorded with the county, then you will have to sue for declaratory relief or to Quiet Title and then record the judgment granting the easement.
A landlocked landowner may bring a quiet title action to establish a right of way by necessity over a neighboring parcel. Roemer v Pappas (1988) 203 CA3d 201, 249 CR 743. A quiet title action may be used to assert an easement by necessity. Lichty v Sickels (1983) 149 CA3d 696, 197 CR 137. No statute of limitations applies to such an action, but the adverse claimant can allege laches. Laches is often raised in the defense of establishing an easement for access to and from a landlocked parcel and, usually, one by prescription over the statutory time period. See CC §1007, noting the 5-year period under CCP §318.
To verify your answer, a prescriptive easement over the statutory time period is a minimum of 5 years use. During that time period of continues use, does it need to be the property owner using the roadway to access the property or can it be caretakers and friends accessing property?
Why are you discussing a prescriptive easement, when your facts call for an easement by necessity?
Sorry for my stupidity as I am not that knowledgeable in law and easements and difficult explaining what I want to know.
Please just simpley let me know, on the tye of easement that is by continues use, if the use needed to be by the property owner, caretakers or friends. Please also verify if the amount of time is 5 years of continuous use.
I apologize that it is difficult for you to understand my question.
No need to apologize. I'm just trying to understand what you're trying to accomplish.
Assuming that you have hostile, open/notorious, actual and continuous use of the easement for 5 years, then caretakers' (i.e., agents employed/hired/contracted by the owners) use woud satisfy the continuous use requirement. Friends, would not, because they are third parties whose use is not continuous. Moreover, if a third party were to continuously use the easement, then that third party would have the right to the easement -- not the owner.
Attorney and Real Estate broker -- Retired (mostly)
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