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Will I Lose the Easement if Driveway Not Exactly on the Designated Easement?

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michellesf

Junior Member
My property is in Northern California. There is an easement on my neighbor’s property for me to get to my house. The easement is marked 12’ wide right beside our properties’ boundary on the parcel map. However, the current driveway is not exactly on the marked easement area. Half of the driveway is on the easement, and the other half is outside the easement on my neighbor’s property, further from the boundary. The portion of the easement right at the boundary is not paved and a small tree grows there. I asked my neighbor whether he or I can remove the tree and pave the portion so that I can drive on the 12’ wide driveway matching the easement on the parcel map. He said no.

The tree is on his property and I do not know whether I can remove it without his permission? Same, I do not know whether I can pave the unpaved easement part so that I can drive on it. With the current situation, I am driving on some of his property that is not an easement for my property. Is there any issue for this? Also, I do not use the unpaved easement and worry that I will lose the easement if not using it for a long period of time. My neighbor is not cooperating. What are my options?

Thanks
 


154NH773

Senior Member
Generally you cannot lose an easement for non-use. A lot depends on the exact wording of the easement, but usually an easement runs with the land and does not expire if not used.

The other issue is more complex, and may depend on court precedent in your state. I am involved with a similar situation, and court decisions say I cannot be diverted by the servient owner from the path of the legal easement. However; if I am blocked by an obstruction placed in the path, I may go outside the path of the legal easement to go around the obstruction.

Basically, if you have an easement, your neighbor may not block you. If the tree is on the easement, and it blocks your access, then I would say you can cut it down. If it is outside the legal easement, you can't touch it.

Whether you can pave the easement depends on the language of the easement, or if not clear, then you might have to have a court decide..
 

michellesf

Junior Member
Based on the following quoted paragrahs from California Civil Code, I may lose the easement after 20 years if I do not keep claim the easement.

If I can legally cut the tree on the easement, do I need to obtain court permission or other document to do it? Also, the previous owner owns my property and my neighbor's property. The previous owner split one property to two and create the easement. However, he did not cut the tree and pave the whole easement area. The worst thing, I found that the irrigation system for my neighbor back yard is using my water. The utility split is not clean. Can I sue the previous owner for all those issues left behind?

Thanks
 

michellesf

Junior Member
Forgot to post the California Civil Code. Here it is.

a) For purposes of this chapter, an easement is abandoned
if all of the following conditions are satisfied for a period of 20
years immediately preceding commencement of the action to establish
abandonment of the easement:
(1) The easement is not used at any time.
(2) No separate property tax assessment is made of the easement
or, if made, no taxes are paid on the assessment.
(3) No instrument creating, reserving, transferring, or otherwise
evidencing the easement is recorded.
(b) This section applies notwithstanding any provision to the
contrary in the instrument creating, reserving, transferring, or
otherwise evidencing the easement or in another recorded document,
unless the instrument or other document provides an earlier
expiration date.
 

154NH773

Senior Member
You already said there is an easement shown on the "parcel map", and that you are using the easement. The law says that ALL of the following must be met for abandonment.

You said you are using the easement, just not all of it. The law doesn't say you can lose the easement if you don't use every square inch of it. That would mean a 12 foot easement could be lost because a vehicle is only 6' wide. I don't think so, but a court can be a crapshoot.

As to whether you can cut the tree, in my case I decided it's better to ask for forgiveness rather than plead for permission. I'd cut the tree... but that's me... and that's why I was in court for 5 years (at least I won).
 
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