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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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We have purchased our house last March in Beverly lls. It is

Customer Question

Hi.
We have purchased our house last March in Beverly Hills. It is a single family home on a hill. From street, you enter the second floor, but to get to the first floor, we have to go through our neighbor's gate and go down the side of our house to the entrance. The previous owner had a verbal agreement with the neighbor and had been using the gate for about 8-10 years to get to the first floor. Though, the neighbor's husband recently past away and since then the wife decided to take that privilege away from us. I received a letter on 11/9/2015 which states that she's giving me a 60 days notice to close the gate.
I mentioned about the easement and she told me that it won't apply since my house is an illegal dwelling. My house is permitted as a single family home, but the previous owner converted it to a duplex and split the first and second floor. Thus,  there's no passage between the first and second floor unless we go through our neighbor's gate.
The house came with a tenant who lives in the first floor who agreed to leave on a 30 day notice once we are ready for renovation. He ended up refusing to leave and we had to go to court to evict him. He is scheduled to leave by 2/7/2016. Although, with the gate closed, our tenant won't be able to leave nor take his belongings out of the property.
My question is, do we have any type of easement that applies to our case?
If so, how can we proceed?
Thx.
Laura
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Thank you for using our forum, my name is ***** ***** I look forward to assisting you today.

Unfortunately, you have been enjoying a permissive easement - one in which the "servient property" (your neighbor) has been permitting you to use the property, but you have no actual legal right to do so).
The fact that the duplex conversion was not permitted is not actually relevant to the situation - although it certainly does not help you. What applies in some very rare instances is an "easement by necessity" for truly landlocked parcels, in which a court will grant an easement to permit access to the parcel to allow a property owner access. Unfortunately, what you have is simply a dwelling with a very poor design (we often see this with commercial properties or garages, where the access to the building is over another person's property - through which there is no easement or property right.

Your best option here may be to try to negotiate (including offering payment) with the neighbor to get additional access rights through the end of the tenancy. You have an end date for the tenant's occupancy of approximately 2 weeks out, this should be something that can be arranged. Make sure to get it in writing to protect you and your tenant in the event she later changes her mind.

Customer: replied 1 year ago.
I've already tried to talk to her mentioning the "easement by necessity" last time, but she told me that it didn't apply for an illegal dwelling. Her husband who passed away was a lawyer. You are saying that the fact that my house is an illegal dwelling has nothing to do with me practicing that right? So she's just bluffing?
Customer: replied 1 year ago.
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Expert:  CalAttorney2 replied 1 year ago.

No, she isn't bluffing.

You can try negotiating a payment with her so that you can continue to use the access.

She gave you 60 days notice - this was enough time to give your tenant a full 60 days notice, so you are going to be estopped from arguing that you are entitled to access under some theory of equity (remember you are using her property without any legal right, and for free).

Expert:  CalAttorney2 replied 1 year ago.

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Customer: replied 1 year ago.
I have given the tenant 60 days notice in August long before I received the letter from her. I had to go to court in December and the judge ordered him to leave on February 7th.
Expert:  CalAttorney2 replied 1 year ago.

I understand the tenant issue is resolved, and that the tenant will be vacating on Feb. 7 from your initial post.

The issue you currently have is that your neighbor is refusing to allow access to the unit and is revoking her permissive easement.

You can try addressing this in the form of offering compensation for a brief right of access (I would even avoid the term "easement") across her property to allow the close of your tenancy. Ask for a couple days beyond the 7th in the unlikely event that the sheriff is forced to perform a forcible eviction, and giving you enough time to do a walk through to perform your final landlord duties. Your neighbor may simply be done with allowing access through her property, but if you are willing to compensate her for a couple of extra days (you have a court order showing that this is a finite issue - you aren't going to be re-renting the unit, or further using the pathway).

Customer: replied 1 year ago.
I tried all of that already but the neighbor isn't interested in money. I'm sorry, but this consultation didn't give me anything new than what I've already known and done.
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I am sorry that you "already knew" everything we discussed. I am enclosing a link to a discussion between the distinction as to what a permissive easement and an easement by necessity are as it may help you reframe your approach to your neighbor: http://realestate.findlaw.com/land-use-laws/necessity-and-permissive-easements.html

Obviously I was not party to any of your prior discussions, and I don't know what you know, the purpose of our forum is to try to give general information and assist in helping customers reach a better understanding of the general law as it applies to their case.

In your situation, you are at a significant disadvantage - you don't appear (at least based on what you posted here) to have a right to use your neighbor's pathway, your neighbor has let you use it for a long period of time, but it is not your right.

You can try using a mediator, often a third party neutral can help two parties reach a mutually agreeable resolution when there is an impasse. Contact your local bar association (there are several in your area), and ask for referrals. Again, understanding your situation, you should probably expect to pay the full fee for the mediator (your bargaining position does not really give you the position to expect the neighbor to split costs), but it may give you an opportunity to get access to the pathway for the remainder of the rent period.

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