Sunday, February 1, 2015
FAIRFIELD-SUISUN, CALIFORNIA
99 CENTS

New neighbor demanding right of way through our property

By
From page C3 | February 08, 2014 |

Q: My brother and I own a 40-acre parcel off of Pleasants Valley Road in Vacaville. We’ve lived on it, with our families, ever since our father died almost 25 years ago. There is a large parcel behind us, most of which goes straight up the hills, that’s always been vacant.

Well, apparently some guy bought it recently. He sent us a letter demanding that we remove about 50 feet of fence between our lot and the road, and cut down a number of trees because he intends to bulldoze a 32-foot-wide driveway to his property right through the northern side of our parcel.

The fence has been there for more than 25 years and the trees he’s talking about are mostly oaks that may be 100 years old. We told the guy we wanted to sit down and talk about this but he just says that he has an easement and if we don’t do as he asks he’ll just sue us.

I’m giving all the details of our location so we can take your answer and show him. Thanks.

A: First, I don’t care who you show this column to, but please understand that the nature of giving legal advice in a newspaper column is like giving medical advice on a radio talk show. In neither case does the doctor or lawyer have all the facts. The best we can do is talk in generalities, based on the information we’ve been given, and hopefully send you in a helpful direction.

The new neighbor is likely operating under one of two possible legal theories.

The first, and most likely, is that your deed contains language giving the owner of the neighboring property an “ingress and egress” easement to his parcel.

Regular readers will recall that an easement is nothing more than a right somebody owns to use the property of another for a specific purpose. In this case, the right to drive over your property to get to his.

A well-drafted easement will be very specific about size, location and the type of use it is for. For example, “an easement for ingress and egress of automobiles and farm equipment along a 20-foot-wide section of land beginning at the northwestern most corner of the lot and extending . . . yada, yada, yada.”

That way, both the property owner and the easement holder know exactly what the neighbor’s rights are.

However, back where you live, many of the deeds are very, very old. They may say nothing more than, “the right to cross the land to access his property.”

With such a vague description, it’s a matter of negotiation which, ultimately, comes down to reasonableness, a common concept in the law.

So if the language of an easement is contained in your deed, the guy does have a right to access his property. Discovering exactly what that means can ultimately be for a judge after a trial.

Similarly, there is another legal principle called an “easement by necessity.”

These are pretty rare nowadays, but they are based on the principle that having a completely landlocked parcel of land isn’t good for anybody. There has to be some method, other than a helicopter, of accessing the property.

So, and only if there is no easement anywhere for the parcel, the court will try to find one.

The judge will look at the history of the neighbor’s parcel to determine which of the surrounding parcels was once commonly owned by the same person. Then, maybe 100 years ago or more, when that owner subdivided the land, the court will assume he meant to establish an easement to provide access. At that point, the court can force an easement upon the landowner even if it was never on the deed itself.

In either of the cases above, the court has to decide the particulars of the easement. For example, an easement designed for automobiles may be very different in size than an easement designed for Sherman tanks.

Generally, the court will try to fix a location that has the minimal amount of interference with the landowner but still provides reasonable access.

There’s nothing wrong with a gate, so long as the neighbor has the ability to open and close it.

It’s doubtful a court would give the guy 32 feet. Twelve feet in width is plenty.

So this is a complicated issue but it’s one you have to deal with. If you can’t come to some arrangement, it will be the neighbor who ultimately has to file a lawsuit to get this resolved.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected].

LEAVE A COMMENT

Discussion | 4 comments

The Daily Republic does not necessarily condone the comments here, nor does it review every post. Read our full policy

  • SprdFebruary 08, 2014 - 8:36 am

    It would be interesting to find out how this all turns out. Years ago we could just sit down and talk. Sad.

    Reply | Report abusive comment
  • next doorFebruary 08, 2014 - 10:48 am

    My parents wanted to remove an oak tree on their property in walnut creek but couldn't legally because oak trees are protected by some stupid law. You might want to research that to save the trees

    Reply | Report abusive comment
  • CEFebruary 08, 2014 - 11:36 am

    I did Code Enforcement in WC. Believe me, it isn't "stupid"!

    Reply | Report abusive comment
  • Blanca BotwinFebruary 08, 2014 - 6:19 pm

    I agree with CE. Code Enforcement is NOT stupid, and it is necessary. My lovely neighbors decided to do some work inside their house, and leave a TOILET in the front yard.One week went by,Second week went by, I called Code Enforcement, and she was here the same day,followed up with me, and best of all, the toilet was removed immediately. As far as the Oak Trees being protected by law, they should be. They were here before us, and they should be here after us.

    Reply | Report abusive comment
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