I was in Calif. real estate for years....and if you buy fee simple land that is land-locked, and there is a road to your property through someone else's. If you can prove that there is a history of others or you using it for 5 years.....then you may be able to get legal right to using it. Here is what I found on-line.
An easement by prescription may be created when a person uses the land of another “continuously” for at least five years “without consent in an open and notorious manner”. In order for a prescriptive easement to be enforceable, the owner of the landlocked property will need to obtain either a court order through a quiet title action or a document from the landowner burdened by the easement. The owner of the landlocked land will have to prove in court:
1.That he/she used a right of way across the adjoining property for ingress and egress.
2.The right of way use was continuous and uninterrupted.
3.The use was hostile or adverse to the rights of the owner.
4.The use of the right of way was under a “claim of right” (either with the belief that the property actually belongs to the owner of the landlocked property, or with the intent to use it regardless of the property rights of the true owner). If the owner gives permission to use the access, this will defeat the action to perfect the easement.
5.The use of the property for a period of five years. Use by preceding owners will be counted toward the 5 year minimum.
Adverse possession differs from prescriptive easements in that adverse possession delivers fee title to the landlocked owner while a prescriptive easement is just that, an easement. In addition to the above requirements, the possessor seeking adverse possession must also pay property taxes for the portion of land used for a period of five years and prove “exclusive use” .
Stopping a landlocked property owner from acquiring a prescriptive easement can be accomplished through several actions:
1.Construct barriers or seek an injunction by filing a lawsuit.
2.Record a notice in the county recorder’s office which states any use by the public or any person whatsoever is by permission, and subject to control of owner.
3.Post a sign at each entrance and every 200′ stating “Right to pass by permission and subject to control, of owner: Section 1008, Civil Code.”
An easement by implication can be created if the following conditions are met:
1.Common ownership at some point in the past of a parcel and a transfer of a portion of the parcel to another person (separation of title).
2.Before the division of title, the use giving rise to the easement must have been so lengthy and obvious as to show it was intended to be permanent.
3.The easement must be reasonably necessary to the use and enjoyment of the land granted.
An easement by necessity can be forced by a court if all the following requirements are met:
1.Both properties were under common ownership when the land was divided and the easement was created.
2.A relationship of grantor and grantee “existed” between the owner of the landlocked property and the property over which the easement is sought.
3.“Strict necessity” for the right of way must exist.
Landlocked properties usually are unbuildable according to local building laws. Review the title carefully of any property that is served by a private road or lacks an access road. Title officers are usually helpful explaining access issues so ask lots of questions before committing to buy a property with limited or restricted access. It is very important to have a real estate professional guide you through the title review process. If you have a question about this or any real estate matter, feel free to contact me:
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