Real Estate Law

Have Real Estate Law Questions? Ask a Real Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Real Estate Law

Have been enjoing an adjacent piece of property for over 20

Customer Question
years with knowledge of our...
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: 3 months ago.Category: Real Estate Law
Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 24 minutes by:
8/1/2017
Real Estate Lawyer: Barrister, Lawyer replied 3 months ago
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 38,680
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.

.

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.

.

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.

.

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
.

So a judge can issue an order stating that you have the right to continue to use that land indefinitely.

.

.

thanks

Barrister

Ask Your Own Real Estate Law Question
Customer reply replied 3 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 3 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.

.

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

.

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.

.

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.

.

.

thanks

Barrister

Ask Your Own Real Estate Law Question
Customer reply replied 3 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 3 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.

.

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.

.

Silence doesn't equal permission.

Ask Your Own Real Estate Law Question
Customer reply replied 3 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 3 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.

.

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

.

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..

.

.

thanks

Barrister

Ask Your Own Real Estate Law Question
Real Estate Lawyer: Barrister, Lawyer replied 3 months ago

Hello again,

.

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

.

Did you have any further questions I can help with?

.

.

Thanks much

Barrister

Ask Your Own Real Estate Law Question
Ask Barrister Your Own Question
Barrister
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 38,680
38,680 Satisfied Customers
Experience: 17 years real estate, Realtor. Landlord 26 years

Barrister is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

38,680 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,657 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,367 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,899 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
HOA removed mine and my neighbor hoses, that were neatly on
HOA removed mine and my neighbor hoses, that were neatly on a holder. Because HOA says it was on common area in the open. Hoses cannot be seen unless you walk around the unit. The President of the HOA… read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,036 satisfied customers
I own a non-exclusive Ingress egress easement. My neighbor
I own a non-exclusive Ingress egress easement. My neighbor constantly Parks his trailer on the easement. He also Parks cars on the easement. I'm wondering if this is legal? I don't want to be responsi… read more
Barrister
Barrister
Lawyer
38,680 satisfied customers
Who is responsible for taxes on an easement on proerty that
Who is responsible for taxes on an easement on proerty that a house sits on in a development that is considered private property by the county and the developer is still in there. … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,657 satisfied customers
A neighbor filed a complaint against be about easement
a neighbor filed a complaint against be about easement access with the homeowners assoc. in the complaint she proposes a bylaw against intimidation etc. she is implying that i threatened her. is that … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,072 satisfied customers
I live in, NV in an HOA community. My neighbor has sent me a
I live in Henderson, NV in an HOA community. My neighbor has sent me a demanding letter to cut down tree branches from one of my trees that is now rubbing on his roof. He stated that I must also provi… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,657 satisfied customers
Tn hoa approved neighbors fence which is in gross ovulation
Tn hoa approved neighbors fence which is in gross ovulation of by laws. Fence built within 3 ft of front of my house. By laws say can not build within 20 ft of front of any unit. When I complained hoa… read more
Barrister
Barrister
Lawyer
38,680 satisfied customers
My neighbor don't want to sign a easement to set to light
my neighbor don't want to sign a easement to set to light poles in her property to get electric power to my property. what should i do next. or who can help me? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,657 satisfied customers
I've been told by a neighbor that if an HOA provides lawn
I've been told by a neighbor that if an HOA provides lawn care and landscaping services, Florida HOA Laws state that it's an "all or nothing" decision. Our HOA says we are each responsible for the 4-f… read more
Attyadvisor
Attyadvisor
Doctoral Degree
6,881 satisfied customers
MY septic filed is on an easement for my neighbor. Surface
MY septic filed is on an easement for my neighbor. Surface water runoff (from his propeerty) is eroding the cover dirt ..am I responsible for this ? … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,807 satisfied customers
My Hoa has a fence in utility easement which is on my
My Hoa has a fence in utility easement which is on my property. There is no mention of this fence on Platt or on my deed, and it does show as mubproperty on a survey we had on our property. Are we hel… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,657 satisfied customers
I have an easement question- Our neighbors have an easement
I have an easement question- Our neighbors have an easement over our property for road access. they use it to go to their campground behind us. Can they drive unregistered vehicles on our property (th… read more
Ely
Ely
Counselor at Law
Juris Doctor
4,899 satisfied customers
It's an HOA question - Neighbor was playing music load
It's an HOA question - Neighbor was playing music load passed 10 om and up until 1 am. I left a nice note on their door asking them if they could turn the music down after 10 pm or maybe wear a headse… read more
Barrister
Barrister
Lawyer
38,680 satisfied customers
Can a neighbor and I sue for prescriptive easement in small
Can a neighbor and I sue for prescriptive easement in small claims court? … read more
Attyadvisor
Attyadvisor
Doctoral Degree
6,881 satisfied customers
How is an neighbors easement shown on a plat or plan for a
How is an neighbors easement shown on a plat or plan for a zero lot line house? Does an easement have to be included in the covenants and restrictions to exist?… read more
Barrister
Barrister
Lawyer
38,680 satisfied customers
Our neighbors have an easement to our driveway to access
Our neighbors have an easement to our driveway to access their back yard. Now they want to build a garage back there. Do we have any rights when it comes to all the heavy equipment using our driveway?… read more
LegalGems
LegalGems
Juris Doctorate
10,165 satisfied customers
I have an easement on the side of my neighbors property for
I have an easement on the side of my neighbors property for water and sewer. a Oleander bush (Large bush) was planted on top of my water lines and broke them in several places. I fixed a break last ye… read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
I live on a Private Access Easement and my neighbor is
I live on a Private Access Easement and my neighbor is renting his house out like a hotel on Airbnb and such. Can the grantor of the easement ask him to stop this commercial use of the easement? … read more
Barrister
Barrister
Lawyer
38,680 satisfied customers
I have an easement on neighbors property and they have
I have an easement on neighbors property and they have horses that roam freely … read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,036 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x