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An (attorney neighbor parcel owner to the south) has a

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similar size parcel to my...
An (attorney neighbor parcel owner to the south) has a similar size parcel to my parcel. The he purchased his property 20 years ago. There is a property boundary line chain link fence which separates our two parcels and has a preexisting chain link gate which he alleges a prescriptive easement allowing only his access to my parcel in an area where I have deeded easement rights for the neighbor to the north and for myself, whereas my recorded deed shows no easement right to my property for him. Said Gate has been in that location for 30 + yrs. but for unknown reasons said gate creates an access to my deeded easement, wherein I am the recorded servient tenement that runs north – south to my neighbor on the north.
The guy on the North has owned his parcel 20 years and uses said gate alleging said gate serves his emergency needs in the event of a fire and to access his water meter located on my easement East of said gate, however my property deed shows no recorded easement for the (attorney neighbor parcel owner to the south), however, he refuses to produce an easement right other than to allege a prescriptive easement.
The (attorney neighbor parcel owner to the south) keeps a lock on the gate, which does not concern me. Nevertheless, the problem is whenever the (attorney neighbor parcel owner to the south) or his workers uses said access gate, my ground cover and irrigation systems becomes damaged and more recently my neighbor to the north and myself had paid survey expense involving survey lath stakes to survey the easement property boundary corners in order to repave the 20 feet wide “L” shaped easement. Unfortunately however, the (attorney neighbor parcel owner to the south) has without concern for my property has repeatedly blatantly destroyed my ground cover, irrigation system and removed the survey stake at that Southeast corner of my property whenever he trespasses my property through said gate.
As a deeded easement property owner, I have concerns for safety hazard, bodily injury, and privacy concerns for individuals who use said gate, but most importantly, I have concerns for the (attorney neighbor parcel owner to the south) legal easement rights, wherein he alleges prescriptive easement rights, and threatens aggressive legal action if I lock him out of my property.
Question:
1. Can the prescriptive easement law apply to this gate access issue, or is a signed agreement between both property owner’s required,
2. The (attorney neighbor parcel owner to the south) alleges easement rights pursuant to the prescriptive easement law for his above grade water meter and backflow devise located within my East-West easement segment, wherein a third parcel owner is the servient tenement as my deed documents myself and the parcel owner to the North as Dominant Tenement’s. That segment of the easement is on the third parcel owners land located on the Northeast segment of the “L” shaped deeded easement. In addition, the water district is unable to locate water meter easement rights for the (attorney neighbor parcel owner to the south), nevertheless, the fact is and said water meter is a safety hazard for normal traffic flow as it reduces the East-West easement segment easement access width to 14’ – 5” whereas, my recorded easement deed width documents 20 feet, further, the (attorney neighbor parcel owner to the south) is not named on any of the three owners easement property deeds, however he persistently claims prescriptive easement rights for his utility as it was in that location when he purchased his property 20 years ago, and uses the prescriptive easement theory to justify use of said gate which he states allows him to monitor of his utility. Moreover, he refuses to produce easement rights and/or a signed agreement, whereas the fact is his water meter is a raised obstacle creating road safety hazards for normal traffic flow within my deeded easement approach, which I believe would not comply with the prescriptive easement law criteria, furthermore, said gate only serves as an access for his use alone, whereas I believe that the prescriptive easement law criteria relates to public two-way access such as ingress / regress.
3. Should I have concerns for consequences (Law suit) if I lock him out, and finally,
4. If I allow him unobstructed access through said gate located on our property boundary line by allowing him to keep said gate locked and to remove at his expense my ground cover and my irrigation system from the path he uses adjacent to said gate onto my property, would I become vulnerable to potential consequences in the event he uses that authorization to file a suit against past access issue such as the four month period the gate was locked by an unknown individual for safety hazard concerns, or for whatever he feels he could use against me and/or for his potential quick claim deed on that segment of my property?
Submitted: 2 years ago.Category: Legal
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Answered in 14 minutes by:
1/25/2016
Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Law Educator, Esq.
Category: Legal
Satisfied Customers: 126,924
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
1) A prescriptive easement can apply when someone can prove use of the property as an easement for more than 5 years without interruption. The easement does not have to be in writing if he can provide proof he has continued to use the gate and the property as an easement over the time he has owned the land.
2) There are four (4) elements to a prescriptive easement in California: 1) The use of land must be open and notorious; Continue and be uninterrupted for a period of at least five (5) years (occasional use could establish the prescriptive use right for the same frequency, e.g., on weekends); Be adverse; and Subject to a claim of right (i.e., not consented to). See: MacDonald Properties, Inc. v. Bel Air Country Club (1977) 72 C.AJd 693 393. There is nothing that says there must be ingress AND egress to the public, just continuous use to the dominant landowner, who would be that particular neighbor.
3) If you block his access, he can sue and would have to prove the 4 elements above and if he does you would be liable for interfering with his easement rights I am afraid. So at this point it would be best for you to negotiate the prescriptive easement with him and settle this matter.
4) At this point anything you do to interfere with his use of the property subject to his easement claim can get you sued and held liable. So I would suggest you not do anything other than negotiate the easement right with him or take the matter to court and do not take anything into your own hands.
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Customer reply replied 2 years ago
Iam confused as your response is different from Richard's received yesterday which reads You can do a couple of things:
1) You can put your own lock on the gate since it's on the property line;
2) You can send him a letter by certified mail putting him on official notice that he is not legally allowed to trespass upon your property without your prior written consent which you are specifically not granting and demand that he cease and desist from any further trespassing in the future. Let him know you hope this is the end of it so that nothing further needs to be done, but that if he continues to enter your property without your consent, you will have no choice but to:
i) contact the district attorney's office and file criminal trespass charges; and
ii) file a civil suit seeking an injunction to be issued prohibiting future trespassing and damages for past trespassing. If he then violates that injunction, he would be in contempt of court and subject to civil and/or criminal sanctions imposed by the court. Typically the letter is sufficient. One other suggestion would be to install an inexpensive camera monitoring the back yard that is tied to a computer hard drive so you have physical evidence of any trespassing should it occur.
Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
I read his reply and I happen to have found case law which does not agree with what he told you, which is why I provided you the case law citation. It is also why I said that if he can prove the continuous use for 5 years, it is in your best interests to negotiate a resolution.
You can take it to court, but if he proves the 5 years continuous use and the remaining other 3 elements cited above, he can win a court order of prescriptive easement against you.
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Customer reply replied 2 years ago
I believe he can prove prescriptive easement rights, but does that give him authorization to destroy my property, remove the survey stake and aggressively threaten us with profanity? Last week, I gave him verbal authorization to remove my ground cover and irrigation system to help create a safe walkway for his use, however as mentioned in my request to you for info, will that give him a quick claim right, furthermore, my main reason for challenging his easement rights is that he refuses to provide documentation for an easement, which I thought would show on my deed. Also, can I demand in an agreement that he maintain that path adjacent to his gate as I am concerned about potential liability if he files a bodily injury claim against me as my deed documents that I am the servient tenament for myself and the parcel away from mine on the North and therefore I have an easement maintenance duty but only for myself and one other parcel to the North.
Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
It does not give him rights to damage your property or remove survey stakes, but it gives him the right to access your property as an easement. It does not give him rights to curse or threaten you either.
However you are only liable to him for injury if you knowingly have a defect in the land that you fail to fix upon receiving notice. As far as his rights to access on the easement, if he proves those elements he will win in court and the costs to you will be much higher. This is why I suggest you settle. You can settle with a written agreement that includes him maintaining the easement.
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Customer reply replied 2 years ago
Not what I expected as yesterday Richard provided some good stuff to help resolve this issue, nonetheless, please let me know if his prescriptive easement is required to show on my property deed.
Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
Well, it appears that the previous expert either misunderstood you or was simply not correct based on what CA case law and laws state. Again, this is why I provided you with actual case law and the name of that case so you can go read it for yourself.
No, a prescriptive easement typically does not show on the deed, it is one created by common law through use. It only ends up showing on the deed when one party raises the issue and either a settlement occurs or they go to court and a court judgment rules in favor of granting the prescriptive easement.
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Customer reply replied 2 years ago
Next question, the gate was locked out for four months by an unknown person, so does the property owner who uses gate have a right to sue me if I allow him to remove my ground cover and sprinkler system, and need help creating a written agreement documenting his responsibility for maintaining the gate path on my property as I have concerns for safety hazards.
Customer reply replied 2 years ago
In other words, by allowing access would that support a potential claim against me alleging I cause the gate lockout.
Customer reply replied 2 years ago
More about an agreement. Do I have the authority to demand a he sign an agreement between us property owners identify safety hazard concerns that is responsible for while on my property?
Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
If the gate was locked by some unknown person, then he has a right to unlock it or you can unlock it. We cannot write any agreement for anyone from this site, it is considered representation and that is forbidden by state law.
You can indeed negotiate an agreement with him to release you from liability for any injury occurring on your land and it can also and should also state heis not to interfere with the use of the easement by others who have easement rights and that he and the oter easement holder must mainain their easement.
Please understand, most customers do not know this, but the experts are not employees of this site and get no credit for spending time with customers unless customers leave positive feedback for the expert on each question they open. Thank you for understanding that.
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