No Easy Lessons on Easements

By Ron Rossi and Laurel Champion

At last you found your dream house in the Santa Cruz Mountains, with a deck area that juts out over the hillside commanding a sweeping view of the Monterey Bay.

One day your downslope neighbor happens by, introduces himself, and tells you that the deck encroaches on his boundary. Your predecessor accidentally located it over the boundary line. They agreed the deck could stay until the property was sold. Now that a sale has occurred, the neighbor wants the deck removed as promised.

What to do? You may have recourse against your predecessor for nondisclosure, but what if you want the deck to stay? Some people mistakenly assume that by using another's land, they've acquired some interest in the other property and can go on using it indefinitely. Unless a property owner allows it to continue by consenting to its use, you will have to establish your right to the use of his land.

One way of acquiring the right to use another's land is through an easement. An easement is an interest in someone else's property for a particular use. A common example is where one property has an access or driveway easement over an adjacent parcel.

An easement is commonly created by an express grant - - meaning the owner of one property formally gives someone else the right to use his land. It may be given as a permanent right or for a limited period of time. It may be created by a deed, an agreement, a will or other documents.

An easement may also arise by prescription if it has been used continuously for five years, under a claim of right to its use, and used in a way clearly visible and "hostile" and "notorious" to the owner's interest. In other words, the user commits a trespass during the prescriptive period and the owner fails to interfere and does not consent to the use. These types of easements do not appear on preliminary title reports unless reduced to writing and recorded.

A prescriptive easement is similar to acquiring title to a property by adverse possession. The requirements are the same except that the adverse possessor must also pay the taxes on the property. Adverse possession is a way of acquiring ownership of property while an easement is a method of acquiring the right to use a property.

Potential buyers need to know the precise boundaries of any parcel they are considering to purchase. Relying on a seller's verbal statements without other verification is problematic and usually leads to trouble later.

Before you purchase a property, consider a formal survey to verify boundaries. Our deck owner needs to verify whether or not the deck does, in fact, encroach through a survey. If our deck owner finds the neighbor is correct, the next step will likely be to negotiate or to litigate.

The neighbor might be willing to grant a permanent easement to our deck owner in exchange for a monetary payment and an agreement to keep the deck in good repair.

If so, it should be memorialized in writing and specify exactly what type of easement is being granted, how much property is involved, where the easement is located, and what it may be used for. It should also be recorded so all future buyers know they have a formal right to use the land next door for purposes of a deck.

Easement disputes are often nasty, costly and time-consuming. They pit neighbor against neighbor, and emotions frequently run high. Regardless of outcome, neighbors are still neighbors at the end, and the impact of a dispute on future relations cannot be understated. Diligence prior to and during the contract stage can pay off in spades.

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