Real Estate Law

Have real estate law questions? Ask a real estate lawyer.

Ask a Lawyer,
Get an Answer ASAP!

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

Customer Question
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: 1 year 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 1 year ago
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 43,074
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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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 1 year 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
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a real estate lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask Barrister Your Own Question
Barrister
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 43,074
43,074 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:

Barrister

Barrister

Lawyer

43,074 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

8,377 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

8,253 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,208 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

4,998 satisfied customers

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

P. Simmons

P. Simmons

Lawyer

3,572 satisfied customers

12+ yrs. of experience including real estate law.

< Previous | Next >

Related Real Estate Law Questions
I am the president of an HOA in Overland Park, KS. Our
Hello. I am the president of an HOA in Overland Park, KS. Our neighborhood has a fence that runs along a major street bordering the neighborhood. The fence is on homeowner property and crosses 17 indi… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
If our HOA decides to allow owners to jnstall their own
Hi. If our HOA decides to allow owners to jnstall their own landscaping what restrictions should apply? Thank you.… read more
Ray
Ray
Lawyer
Doctoral Degree
8,253 satisfied customers
4 years ago we were notified by our neighbor we were landscaping
4 years ago we were notified by our neighbor we were landscaping on their property. We were incorrectly advised by the builder of the property line that a very small piece of land (100 square feet) wa… read more
CalAttorney2
CalAttorney2
Attorney
Doctoral Degree
8,845 satisfied customers
I have a lot with a 35 foot landscape easement, controlled
I have a lot with a 35 foot landscape easement, controlled by the home owners association. Their landscape mounds are intruding upon my buildable area of my lot. Do I have any recourse to have them re… read more
Barrister
Barrister
Lawyer
Doctoral Degree
43,074 satisfied customers
how far( miles/feet/yards) is a deed restriction intended;
how far( miles/feet/yards) is a deed restriction intended; "benefited party" say from the boundary of a golf course. thank you tomg… read more
socrateaser
socrateaser
1,031 satisfied customers
I live in Palm Beach County Florida own a zero lot line home
I live in Palm Beach County Florida own a zero lot line home with a 3 foot easement . The county is saying that I have no right to use it for draining my gutter with an under ground drain along the ho… read more
Barrister
Barrister
Lawyer
Doctoral Degree
43,074 satisfied customers
There is an 8'x10' area in a utility right-of-way that I've
There is an 8'x10' area in a utility right-of-way that I've landscaped and maintained since I purchased this home 3 yrs ago. Nothing had been done in this area up to that point. My neighbor completed … read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
I purchased my home 20 years ago. I live in Port Orange FL.I
I purchased my home 20 years ago. I live in Port Orange FL.I just found out that the city has a large sewer line about 5 feet inside my property line that runs the entire length from front to back. If… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
Two types of easements encountered after closing, or which
Two types of easements encountered after closing, or which title co missed. They appear to indicate they will cover resolving issue, but not sure. Meanwhile, one neighbor has exclusive easement issued… read more
Legalease
Legalease
Attorney At Law
Doctor of Law w/ highest honors
15,719 satisfied customers
My husband and I purchased a surveyed 2 1/2 acre piece of property
My husband and I purchased a surveyed 2 1/2 acre piece of property in unincorporated Clark County in 1994. At that time the field acreage was completely enclosed and fenced with the exception of appro… read more
socrateaser
socrateaser
1,031 satisfied customers
We have some family property in Oregon. It was in one 40 acre
We have some family property in Oregon. It was in one 40 acre piece for 50 years. One house accessed by a driveway up the middle of the property. Then it was split into 3 separate pieces between 3 sib… read more
JBaxLaw
JBaxLaw
Attorney
Doctoral Degree
8,080 satisfied customers
My house was built in 1972 with an ajoining vacant lot. We
My house was built in 1972 with an ajoining vacant lot. We purchased the home in 1998. We had it surveyed which reflected 1-2 feet encroachment by us. There was no fence, however, a property line was … read more
TaxAttorneytoHelp
TaxAttorneytoHelp
Owner
Doctoral Degree
2,542 satisfied customers
What is Easement Can HOA force me to remove my shed
I build a storage room inside my property and inside my fence, the next door neighbor has noproblem with it. But my ACC has problem with it. I did not know I must submit a request before I build it. A… read more
David L
David L
Doctoral Degree
1,604 satisfied customers
I am the owner of Miller Power Equipment Co in Tyler, Texas.
I am the owner of Miller Power Equipment Co in Tyler, Texas. Grace Community Church shares a property line with Miller's. We have a friendly relationship with the church, which continues. They have re… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
a natural spring has surfaced on my property and the water
a natural spring has surfaced on my property and the water is taking it's natural course. it runs onto the downhill neighbors property and hits their house (the builder of that house altered the lands… read more
socrateaser
socrateaser
1,031 satisfied customers
My builder set my home to be modified zero lot line home 20
My builder set my home to be modified zero lot line home 20 yrs ago. The west side of my home backed to my neighbor's yard which is my easement. My property line is about 8 feet away from my wall ther… read more
socrateaser
socrateaser
1,031 satisfied customers
When we purchased our home, we were notified of 2 easements
When we purchased our home, we were notified of 2 easements on our property. The first is a 10 foot "Access Easement" on our private drive on the north side of our property. The second is an additiona… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
I own a property where a landscape easement was provided to ...
I own a property where a landscape easement was provided to the builder when the homes were built in 1977. The easement has never been used and was put in place so that the builder would not have to g… read more
CALawyer
CALawyer
Attorney
Juris Doctor
1,622 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