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  1. #1
    copperdon is offline Junior Member
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    Angry Perscriptive easement or Cow Pucky

    What is the name of your state? California
    In June of 2004 we purchased a 5 acre piece of vacant land. During the negotiations we learned that the neighbor who had been leasing the property (and hundreds of acres more owned by the seller) for some 15+ years for cattle grazing, had lost their lease (which created a heated dispute between 2 very large land owners) and they were now claiming (2) perscriptive easements across the property, and they claim that they go back into the 40s. The seller of the land had never been notified of any claim and rejected it, but still informed us of it. Since perscriptive easements run in 5 year cycles in CA, and you have to be against the true owners will, it did not appear that their claim had any merit. We also talked to our attorney at the time (we owned a business and he took care of business related items for us), he also felt they had no case, so we went through with the purchase. They claim that the lease(s) did not extinguish the claimed easement and that it just reinstated after the lease was over. Today we got served with a lawsuit to make those claims legal. There still is no proof that any perscriptive easement ever existed, only claims. There is no need for the easement, he owns the very large parcel that wraps all the way around ours, plus he has thousands of feet of roadway frontage and multiple gates (not to mention literally thousands more acres around the county). This is the property we plan to build our dream house on (it has a creek, a pond and a 100 year old bridge), and he wants to runs semi trucks up and down our driveway (which is right through the middle of the property). We have offered to pay put a gate on his property where he wanted just to make this go away, but he would obviously rather torment us! I don't think he has a leg to stand on, but if he did win...Who would pay for the driveway maintenance, who is liable for injuries, what happens if he leaves the gate open and our kids get hit by a car?!! Anyone know about a "lease pause" in a perscriptive easement?
    Thanks for your time and thoughts.
    Last edited by copperdon; 01-13-2007 at 07:26 PM.
  2. #2
    danno6925 is offline Member
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    If the proposed prescriptive easement is the neighbor's only access to his property, he will likely get the prescriptive easement granted to him. What does your title company say about all this? If the title to the land was encumbered, it should be on the title report.

    If I were you, I would find out the nature of the original lease. When you say he "lost" the lease, does this mean he misplaced it, or was the landlord/tenant relationship terminated?
    You may be dealing with a tenant at sufferance situation. It's not necessarily trespass, since he originally had a right to be on the lands. You will definitely want to get an attorney who's well-versed in real estate law regarding easements and trespass case law.
  3. #3
    copperdon is offline Junior Member
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    Danno6925, thanks for your reply. Our neighbor claiming the easement actually has thousands of feet of road frontage and about five or six access gates...access onto his property is not the issue. He stated to me that it is not an easement by necessity, just something that his family feels is valuable (ie. free). There is not an easement on the title (no deeded access).

    The lease had just reached it's end and was not renewed. The story I received second hand, is that the seller (lessor) had always been told what the land was worth (for lease) by the lessee. When he was finally contacted by another interested party, and found he was only being paid somewhere around half the market rate. He of course leased to the new party, cutting the old lessee out and created quite some animosity by doing so! Now I feel that we are receiving the brunt of his frustration and his well funded lawsuit.
  4. #4
    FarmerJ is offline Senior Member
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    This may be a good example of when its the perfect time to have a real estate atty draw up letter for you , reminding the other person that they dont have a legal right to use your property in any way, that they have more than one place they can access there own land from public roads and any entry by them to access your property can be video recorded and the recording will help you prove tresspassing. BTW recording systems are not as expensive as they used to be so you might as well invest in one to record all entrys onto your property. The other person may actually decide to leave your property alone knowing from the start that your willing to take steps to give them grief. AND if they dont give a damn maybe they will when the whole matter hits them in the wallet.
  5. #5
    copperdon is offline Junior Member
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    Thanks Farmer, This ordeal has already been through the letter writing phase, the locking gates, etc, etc.

    The big question is: Is there any type of a loophole they can use to reset the clock after having leased the property? Ironicly, their complaint does not mention their leasing the property!

    I am searching for an attorney right now, my old attorney has moved out of the area (about 500 miles away), he recommended a couple in my area, but their schedules seem to be too full to accomodate new clients. I only have about 25 days to formally respond to thier complaint (lawsuit). Anyone a good RE attorney, or know one?
  6. #6
    BelizeBreeze is offline Senior Member
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    "A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired."

    Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement."
    (Civ. Code, 1007; Code Civ. Proc., 321).


    "In order to establish an easement by necessity, the dominant tenement must be completely landlocked; the easement must be absolutely necessary for access to the dominant tenement, and there cannot be any other possible means of access." (6 Miller & Starr, Cal. Real Estate, supra, 15:28, p. 102, fn. omitted.)
    DUBIN v, NEWHALL Super. Ct. No. PC025561

    Morris v. Vossler (1952) 110 Cal.App.2d 678, 682 [243 P.2d 43]
    Connolly v. McDermott (1984) 162 Cal.App.3d 973
    Mesnick v. Caton (1986) 183 Cal.App.3d 1248 , 228 Cal.Rptr. 779
    Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587 , 181 Cal.Rptr. 25
    Wood v. Davidson (1944) 62 Cal.App.2d 885 , 890 [145 P.2d 659].
    Hannah v. Pogue (1944) 23 Cal.2d 849 , 854 [147 P.2d 572].)
    Silacci v. Abramson (1996) 45 Cal.App.4th 558 [53 Cal.Rptr.2d 37]
  7. #7
    copperdon is offline Junior Member
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    Great response BelezeBreeze! That's some great information to reference in our reply. Could you please give me some direction to look up the case histories you have referenced? Sorry, this my first lawsuit I've ever been invoved in (and hopefully the last).

    Thanks so much!

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