easement by necessity?

[iamkatiem]

What is the name of your state (only U.S. law)? California

I own a 5 acre parcel that was part of a 20 acre parcel that was split years ago (I'm not sure exactly when). When they split the parcel, they left 10 acres in the back and put two 5 acre parcels in the front along the road. They didn't put in an easement for the back 10 when they split it. My deed says nothing about an easement; the plat map has nothing about an easement. The daughter of the man who split the property owns the landlocked 10. Her lawyer just sent us a letter saying they want to put an easement of necessity along the west side of our property to access her property (which is directly north of us). I understand that she needs to be able to access her property (which is currently just bare land that she's trying to sell, which is why this issue never came up before), but there is an easement north of her that goes all the way down to the northeast corner of her property. However, it is labeled as a private road. Is there any way that she can be made to use that private road instead of taking the west side of my property? I understand that we'll be compensated (I believe it's through our homeowner's insurance) for the land they take for the easement, but I'd rather have the land than the money. Do I have any say or am I just going to be forced to sell my land to her?

 

[154NH773]

Since the entire property was owned by the same person, you must determine which of the 5 acre pieces was the last to be sold by the original owner. That is the property that will have to give an easement. Search the deeds of all the surrounding properties to investigate whether an easement may have been granted along the existing road or through some other property, and which of the 5 acre pieces were sold last.

If there is an existing road into the property, how or why was it created, and does it actually touch the 10 acres?

You do not have to sell her anything unless a court orders you to sell. If they went to court, you should argue that the existing road should be declared the access. The court may make any decision it wants, reasonable or not.

 

[LdiJ]

What is the name of your state (only U.S. law)? California

I own a 5 acre parcel that was part of a 20 acre parcel that was split years ago (I'm not sure exactly when). When they split the parcel, they left 10 acres in the back and put two 5 acre parcels in the front along the road. They didn't put in an easement for the back 10 when they split it. My deed says nothing about an easement; the plat map has nothing about an easement. The daughter of the man who split the property owns the landlocked 10. Her lawyer just sent us a letter saying they want to put an easement of necessity along the west side of our property to access her property (which is directly north of us). I understand that she needs to be able to access her property (which is currently just bare land that she's trying to sell, which is why this issue never came up before), but there is an easement north of her that goes all the way down to the northeast corner of her property. However, it is labeled as a private road. Is there any way that she can be made to use that private road instead of taking the west side of my property? I understand that we'll be compensated (I believe it's through our homeowner's insurance) for the land they take for the easement, but I'd rather have the land than the money. Do I have any say or am I just going to be forced to sell my land to her?

An easement is not a sale of the land. An easement is granting permission for the use of the land (or being forced by the court to grant permission). The land still remains the property of the owner, the other party just gets to us it for a necessary purpose.

How much is that 10 acres worth?

 

[iamkatiem]

If there is an existing road into the property, how or why was it created, and does it actually touch the 10 acres?

There are six parcels to the north of her property that use the private road to access the public road on the north side of the properties (three parcels on the west side of the road and three parcels on the east side). She wants to put an easement through my property to access the public road on the south side. Is there any way to attach pictures so I can show you the plat map? The end of the public road stops just at the top corner of her property line. It looks like it technically doesn't go on to her property, but it stops just at the edge. It seems to me that she should be able to, with permission from whoever she'd need, have a driveway onto her property from that corner.

I'll have to look into which of the 5 acres was created last. What if it was all done at the same time?

 

[iamkatiem]

How much is that 10 acres worth?

I'm not sure exactly what it's worth. There are a couple other bare land 10 acre parcels (not landlocked) for sale right now in my area. For one, they're asking $195,000 and the other is asking $225,000.

 

[154NH773]

What if it was all done at the same time?

Which one was filed first? The Book and Page of the Registry would indicate that information.

It appears that there may be more reasonable and less intrusive access than across your property. A court might find that some other access might be preferable, but that would be according to how hard you argue for some other route, etc.

What is their reason for demanding access across your property rather than some other route?

 

[iamkatiem]

Which one was filed first? The Book and Page of the Registry would indicate that information.

It appears that there may be more reasonable and less intrusive access than across your property. A court might find that some other access might be preferable, but that would be according to how hard you argue for some other route, etc.

What is their reason for demanding access across your property rather than some other route?

I'm not sure which was filed first. I can see that the 10 in back and my 5 were split in May 1998 by person A. I can see that my 5 was then sold from person L to person H in May 2001. I can see that the other 5 acre parcel was sold in September of 2003, but it doesn't have person A or L on the document. It has person H as the seller and person S as the owner. So I'm not sure if person H bought both 5 acre parcels at the same time or not. This whole thing confuses me a little, to be honest.

And I'm not sure what their reason is for demanding access across my property rather than some other route. I assume it's because they've tried outside the court system with the others and the others said no. They're probably hoping they can bully us around because we're relatively young (late 20s) and this is our first experience in homeownership. I have a feeling they're trying to force our hand because they're hoping we'll just roll over. I'm honestly not sure.

 

[154NH773]

They're probably hoping they can bully us around because we're relatively young (late 20s) and this is our first experience in homeownership.

Don't let them. If they had a legal right to cross your property they would show it to you. The fact that they are willing to compensate you shows that they do not have an existing right. It is your choice if you want to grant them an easement, or sell them property.

This whole thing confuses me a little, to be honest

Your county clerk may be able to help you search the deeds at the county recorder's office. It really isn't that hard to do. Each deed refers to the previous deed in its succession by a Book and Page number. Find out who the current owners of the properties are, and proceed to search their deed and then each one back in succession. If you find that you have trouble, go to a title company and ask them to do the search for you, and tell them specifically what you are trying to determine (last lot sold that created the landlocked situation).

If they tell you that you must give them an easement by necessity, ask them what the basis of their claim is. They will have to go to court to have a judge grant them an easement by necessity, and if you do some research you may be able to prevent that.

 

[iamkatiem]

Don't let them. If they had a legal right to cross your property they would show it to you. The fact that they are willing to compensate you shows that they do not have an existing right. It is your choice if you want to grant them an easement, or sell them property.

It's my understanding that they wouldn't compensate me, but my insurance would. Maybe that's incorrect information. Her lawyer sent us a bunch of paperwork referencing Kellogg v. Garcia from 2002 as precedent. Rereading it, it kinda sounds like it would support my claim that they should use the private road on the other side of their property. The overview states "Landowners were gifted a landlocked parcel which required that they use a private road that crossed their neighbors' properties in order to gain access to the property. Their neighbors denied that the landowners had a right to use the private road that traversed their property for purposes of such access." Am I crazy, or does that sound more like a precedent for them to be able to access the private road that already exists instead of creating an easement across my property?

 

[154NH773]

It's my understanding that they wouldn't compensate me, but my insurance would.

Maybe they feel your Title insurance would cover it. I can't advise you on that.

Am I crazy, or does that sound more like a precedent for them to be able to access the private road that already exists instead of creating an easement across my property?

Not actually having read Kellogg, my feeling is that it may not be precedent for your situation.

The overview states "Landowners were gifted a landlocked parcel which required that they use a private road that crossed their neighbors' properties in order to gain access to the property. Their neighbors denied that the landowners had a right to use the private road that traversed their property for purposes of such access."

You do not say what the outcome was in this case. Did the court grant an easement over an existing road rather than through the property that created the landlocked situation? Why?

Again, it is usually the sale that created the landlocked condition that would be burdened by the easement. Which sale was that?

Having read some of Kellogg, seems to back up my contention;

Under the law, "[a]n easement by way of necessity arises . . . when it is established that (1) there is a strict necessity for the right-of-way, as when the claimant's property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity." (Moores v. Walsh (1995) 38 Cal. App. 4th 1046, 1049 (Moores).)

 

[154NH773]

Further reading from Kellogg;

A way of necessity "'is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Thus, the legal basis of a way of necessity is the presumption of a grant arising from the circumstances of the case. This presumption of a grant, however, is one of fact, and whether a grant should be implied depends upon the terms of the deed and the facts in each particular case.'" (Daywalt, supra, [102 Cal. App. 4th 804] 217 Cal. App. 2d at pp. 672-673, citing 17A Am.Jur., Easements, § 58, pp. 668-669, original italics.)

In other words, an easement of necessity arises when a single owner sells a piece of property and creates the necessity (by landlocking a piece of property). It is considered inferred that a grant of an easement was made across the property that was sold and created the landlocked situation (although other factors may be considered) .

So, it is a matter of which of the properties was the last sold and created the landlocked 10 acres. You need to research and determine if your property was that property.

 

[iamkatiem]

You do not say what the outcome was in this case. Did the court grant an easement over an existing road rather than through the property that created the landlocked situation? Why?

Again, it is usually the sale that created the landlocked condition that would be burdened by the easement. Which sale was that?

Having read some of Kellogg, seems to back up my contention;

The trial court ruled in favor of the neighbors, but the appellate court disagreed and found favor for the one who was landlocked and wanted to use the neighbors' road. I'm still looking into whose property was sold last.