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Can a neighbor and I sue for prescriptive easement in small…

Can a neighbor and...

Can a neighbor and I sue for prescriptive easement in small claims court?

Lawyer's Assistant: What property use does the easement allow?

There is a dirt road between my neighbor's property and mine that has not been used to access a third property at the end of this dirt road for over 25 years. The 3rd party in the back has another improved road access to his property that he always uses to access his property or h

Lawyer's Assistant: Where is the property located?

The renters in this case. He is doing a boundary line adjustment to allow access to a vacant lot on his property and now wants to access this vacant lot using that dirt road access. This is in Murphys, CA

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Any more questions?

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8/5/2017
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
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Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Can you tell me if the requirements stated below for a prescriptive easement have been met?

“A prescriptive easement is an easement right granted at law when one party (the dominant estate) uses or accesses the property of another (the servient estate) for a specific purpose, for a defined period of time, without consent.

Generally speaking, there are four (4) elements to a prescriptive easement in California:

1. The use of land must be open and notorious;

2. 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);

3. Be adverse; and

4. Subject to a claim of right (i.e., not consented to).

Pursuant to MacDonald Properties, Inc. v. Bel-Air Country Club, the holder of a servient estate must have actual knowledge of its prescriptive use in order for such use to be open and notorious. 72 Cal.App.3d 693. According to Grant v. Ratliff, 164 Cal. App. 4th 1304, in order for the use to be adverse, it must be hostile. To wit, consent is a complete defense to a prescriptive easement. The five (5) year requirement commences when the dominant estate begins to use the servient estate adversely and without consent.

A prescriptive easement can arise from something as simple as a pedestrian crossing a parking lot of a local business once or twice a week to access an adjacent property. While the activity may seem innocuous, after five (5) continuous years of crossing the parking lot, the pedestrian may successfully argue that it is his or her right to do so. Not only is this reality frustrating, but should the pedestrian formalize the prescriptive easement by filing suit, it can cause complications when the servient property owner decides to sell.

The burden of proof is generally on the party asserting prescriptive rights, which must meet the clear and convincing evidence standard.  Connolly v. McDermott. 162 Cal. App. 3d 973. Clear and convincing evidence means that the evidence presented must be highly and substantially more probable to be true than not, resulting in a firm belief or conviction in its factuality.

By their nature, prescriptive easement matters are extremely fact intensive and a case is more easily made with pictures and documentation that illustrate the use and evidence the amount of time that use has persisted. Regardless of whether you are trying to prove or disprove the existence of a prescriptive easement, copious records are crucial.” https://www.reickerpfau.com/california-prescriptive-easements/

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Customer reply replied 11 months ago
There is an important part I left out. The existing dirt road is in a straight and only 12 ft wide however the original subdivision plans show it as curved which will cut into my existing property and my neighbors if he chooses to follow the original plans.
We want to sue the third party for prescriptive easement rights to use our properties as they border the straight access.

Is the dirt road a platted and recorded road/easement?

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So your concern is that if the neighbor uses the road as originally platted it will encroach on your property and you could be denied access?

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Customer reply replied 11 months ago
We would still have access it's just that we have enjoyed our landscaped properties up to the existing road border and with this third party trying to make it into his easement it could greatly modify our properties, trees, plants, gardens, etc.
Customer reply replied 11 months ago
He could still have his easement the way that it is.

I see. Thank you for the clarification. Based on how many years the road was never modified as set out pursuant to the original plans and you have been using this land as part of your landscaping you absolutely have a claim under adverse possession/prescriptive easement.

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Customer reply replied 11 months ago
Can this be settled in small claims court?

Thank you for your patience, I had a computer glitch. This would not be handled in small claims court. This would be a Superior Court matter. I can provide a link for local Attorneys that provide FREE consultations in your area if that would be helpful?

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Customer reply replied 11 months ago
Ok that would be helpful
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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,886
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Customer reply replied 11 months ago
Thank you

Thank you for using JA! We appreciate your business.

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