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Have been enjoing an adjacent piece of property for over 20…

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Have been enjoing an adjacent...
Have been enjoing an adjacent piece of property for over 20 years with knowledge of our use by owners (property was originally to have easement for use as intended the builder). We want to obtain easement to replace hardscape and landscape required by HOA. Owners do not wish to grant easement and now may build on this property. The property line is 5 feet between both our homes. We have been using this 10 feet since homes built in 85. Can we force an easement based on our continued use?
Submitted: 9 months ago.Category: Real Estate Law
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Answered in 24 minutes by:
8/1/2017
Real Estate Lawyer: Barrister, Lawyer replied 9 months ago
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 41,638
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified

Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.

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If you have been using the land that long without any specific permission from the legal owners, then you could file a "quiet title" lawsuit against the legal title owners and claim a "prescriptive easement" (easement by use) as the time limit in CA is only 5 years.

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In California the period of time for adverse possession 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 318, 325, and 328
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So a judge can issue an order stating that you have the right to continue to use that land indefinitely.

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thanks

Barrister

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Customer reply replied 9 months ago
Obviously they are and have been aware and completely OK with our use of that land. If we filed a quiet title suit for a perscriptive easment, can they fight it? Also, I have not read or heard of having to pay taxes on an easement that is not truly owned by us. Currently we have an easment that is deeded to our HOA but in this case, our neighbors are not giving us the property, just the use (continued) of.
Real Estate Lawyer: Barrister, Lawyer replied 9 months ago

The whole point of "adverse possession" is that it is "adverse" (i.e. hostile, without permission) So knowledge is one thing, but if they gave you permission, that ends your claim because it is no longer hostile use... it is permissive and you are a licensee.

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So if they never actually gave you permission, then you can claim adverse possession.

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And yes, they can fight it by claiming that they gave you permission. Then it boils down to which story a judge finds more credible.

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And you only have to pay the taxes on it if it is separately assessed, which most aren't because the land covered by the proposed easement route is just part of the larger parcel.

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thanks

Barrister

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Customer reply replied 9 months ago
We did not have adverse possession. But because we have had use for more than 30 years, do we have any options?
Real Estate Lawyer: Barrister, Lawyer replied 9 months ago

Unfortunately no, if you had permission to use that land, it was a license and no matter how long you use a license on land, it can be revoked at any time by the landowner. It is like being a tenant... a tenant never gains legal rights to land as long as they have the permission of the owner to be on the land.

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But being OK with your use and actually giving permission are two completely different things.. They might simply have not cared that you were using it, but that doesn't equate with permission. They would have had to either put it in writing or verbally tell you "sure, you can use that area if you want to" for it to be permissive use.

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Silence doesn't equal permission.

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Customer reply replied 9 months ago
At one point they said "we should just deed this over to you". Yes in essence they have given us permission to use the land. THey have signed every neighbor notification on the remodel, common wall and landscape. But now since we have to resubmit the landscape/hardscape plan with a deed of easement, they now may want to take the use of this parcel.
Real Estate Lawyer: Barrister, Lawyer replied 9 months ago

Well, this is going to boil down to 1. do you want to hire an attorney to take it to court. and 2. do their comments indicate express permission, or simply ambivalence to you using the property, thereby not defeating any claim for adverse possession.

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Them waving to you and saying "Hi neighbor" while you were working on it wouldn't indicate permission. That has to be expressly stated.

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But if you don't think that it is worth the time, money and effort to try to claim it you can just work on your 5 feet and let theirs grow wild and let them maintain it. After a few months, they may decide it is more beneficial to them to just give you an easement so you will maintain it..

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thanks

Barrister

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Real Estate Lawyer: Barrister, Lawyer replied 9 months ago

Hello again,

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I just wanted to touch base with you and check in.

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Did you have any further questions I can help with?

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Thanks much

Barrister

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