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Prescriptive Easemant

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doughert98

Junior Member
What is the name of your state (only U.S. law)? California
I recently bought a house in Los Angeles. My driveway ajoins the driveway for the house next door. The house next door has an addition which reduces the size of their driveway to an unusable width. They have been parking on my house's driveway for over 5 years.

I installed a fence on my property line between the 2 driveways. The neighbor's driveway, which was used for parking their cars as they have no garage, is now unusable for parking their cars.

The owner of the property said he has a prescriptive easement and he will get an order for me to remove the fence. I have no knowledge or written claims of a prescriptive easement before or after I bought the house.

Can my neighbor make me remove the fence?
 


M

Mass_Shyster

Senior Member
doughert98 said:
What is the name of your state (only U.S. law)? California
I recently bought a house in Los Angeles. My driveway ajoins the driveway for the house next door. The house next door has an addition which reduces the size of their driveway to an unusable width. They have been parking on my house's driveway for over 5 years.

I installed a fence on my property line between the 2 driveways. The neighbor's driveway, which was used for parking their cars as they have no garage, is now unusable for parking their cars.

The owner of the property said he has a prescriptive easement and he will get an order for me to remove the fence. I have no knowledge or written claims of a prescriptive easement before or after I bought the house.

Can my neighbor make me remove the fence?
Click to expand...
It your neighbor has actually been using it for five years, he may have acquired a prescriptive easement.

He can go to court and try to get an injunction ordering you to remove the fence. The injunction can take the form of a temporary restraining order, a preliminary injunction, or a permanent injunction. A temporary restraining order can be obtained without any prior notice, where a preliminary injunction requires service to the defendant.

You should contact your title insurance company.
 
D

doughert98

Junior Member
Presciptive Easement

My neighbor does not have a gargage. He does not need my driveway for access. Only for parking his cars. There is available parking on the street.

The width of his driveway is reduced by the discretionary action of the enlargement of the structure on his property.

His encroachment deprives me of the use of my property to park my cars.

If I enlarge my house and reduce the width of my driveway, does that give me the right to park my cars in his driveway?

I understand easements for necessary access but for parking when available parking is available.
 
C

csi7

Senior Member
Check the local building codes, title and survey information, and have what information you were made aware of when you purchased the property available to help. You have the right to use your property for yourself only. Keep asking questions.
 
M

Mass_Shyster

Senior Member
doughert98 said:
If I enlarge my house and reduce the width of my driveway, does that give me the right to park my cars in his driveway?
Click to expand...
If you park on his property for five years, and he does nothing about it for those five years, you obtain a prescriptive easement to his property.

The problem here is that he's been doing it for five years. That is the statutory period required in California to obtain an easement by prescription.

Here's a pretty good write-up on prescriptive easements and adverse possession in California

Howard Rice Nemerovski Canady Falk & Rabkin
 
D

drewguy

Member
Based on that article, you should have some comfort in the direct cal. courts are going--it would seem that a "prescriptive easement" to park cars would exclude a lot of other uses (as you point out, an addition, your own parking, a garden, etc.) that might make it difficult to establish. You might start looking around for a lawyer, but wait until the neighbor takes action to start paying the lawyer loads of money.
 
D

doughert98

Junior Member
Prescriptive Easement

The question is: Waht use justifies a prescriptive easement?
A garden does not
Access to property does
Where does parking fall?
Is there any case law that addresses what use of property justifies an easement?
 
M

Mass_Shyster

Senior Member
doughert98 said:
The question is: Waht use justifies a prescriptive easement?
A garden does not
Access to property does
Where does parking fall?
Is there any case law that addresses what use of property justifies an easement?
Click to expand...
How's this one?
Court of Appeal, Second District, Division 1, California.
Mark L. BENNETT, Plaintiff and Respondent,
v.
Kittong LEW, Defendant and Appellant.

Civ. 68671.
Feb. 17, 1984.

Appeal was taken from an order of the Superior Court, Los Angeles County, John L. Cole, J., granting a preliminary injunction requiring defendant to remove fence dividing his driveway from adjoining driveway of plaintiff. The Court of Appeal, Lillie, Acting P.J., held that: (1) there was sufficient evidence to sustain preliminary injunction; (2) there was no abuse of discretion in requiring defendant to perform affirmative act of removing fence; and (3) trial court did not abuse its discretion in determining that plaintiff was not barred from relief by doctrine of unclean hands.

Affirmed.

Bennett v. Lew 151 Cal.App.3d 1177, 199 Cal.Rptr. 241 (Cal.App. 2 Dist.,1984)
Click to expand...
 
H

HappyWanderer

Member
Bennett v. Lew was a burden of proof issue case I'm not sure if it is the same fact pattern as here.

I'd see an attorney who will look up current case law. I don't think the use has been "adverse", but I don't know. ( http://blog.aklandlaw.com/2008/08/articles/planning-zoning-development/longtime-debate-over-presumptions-in-prescriptive-easement-cases-settled-by-second-appellate-district/) I did like the article stevef posted, but, I come to a different conclusion. It seems like CA really doesn't like to use the theory for boundary disputes in residential areas. When you look at a couple of the cases in the article, the facts are crazy. The neighbor built the fence and improved his side up the fence and it would cost tens of thousands of dollars to remedy. Even then there seems some compensation goes to the other party.

Leave the fence, see an attorney, decide how much you want to spend defending an eventual lawsuit and/or the bad feelings between neighbors.
 
B

Brnshark

Junior Member
Prescriptive Easement

I am in the same situation but in illinois.
My neighbor has put up a fence down the middle of the drive. In order for me to use the driveway and garage i had to remove the side stairs that lead to a upstairs door of my home. So its the stairs or driveway and garage. It has been a share driveway for over 30 years. I am 3 years into court and am finally tending trial the first week in January.
 
D

doughert98

Junior Member
Prescriptive Easement

Sharing the driveway for access is OK. But when the neighbor parks his big car and it blocks me from parking in my driveway, something is not right. Especially when his property can be modified (remove front porch extension) to allow him some space to park 1 car completely on his property.

Can I remove my driveway and make the property unusable for parking before he files a claim for prescriptive easement?
 
D

drewguy

Member
If he has already obtained the legal right (i.e., basis for a claim) for a prescriptive easement then removing the driveway means only that you might have to rebuild it if he succeeds in winning the case.
 
C

csi7

Senior Member
Removing the driveway within your property boundary is legal. Putting up a fence within your property boundary is legal. You have the right to use your property for yourself.
 
B

Brnshark

Junior Member
True that people have the right to do with what the please to their property. But... there is always a but.

There was a shared driveway built for 2 homes in 1955, both with garages at the end. 1 home with 15 ft of driveway space and one with 5 ft with houses built right up against the sides of the drive. so a fence is built on the down the middle of the drive for the people who have 15 ft of space. so the person who has 5 feet are no longer able to have access to their 3 car garage, because their cars don't fit between the house and the fence. Hmmm then what. so I have a house that i can no longer have access to a garage.
 
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