My question involves an easement in the state of:California
My question involves an " Claimed " Prescriptive Easement in the state of: CALIFORNIA
Hello Everyone Happy Holidays :
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OK THIS IS THE QUESTION ? :
Related to this property: is the "transfer of a " claimed " prescriptive easements " Legal ? , allowed ?
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since the County where I Live says they ( Former Property Owner) have no prescriptive easement and I know of none ? , Title Company Know of none ?
Then Can someone tell me How a " Claimed " prescriptive easement rather then a " actual used prescriptive easement "
can be transferred ?
I Hope I am Clear : What I am Saying is this in other words : I can understand that a prescriptive easement perhaps used to access a property for years ( at least 5 years in CA. ) could be Transferred .
But is not a " Claimed " unused prescriptive easement to a Property completely undeveloped something that could not be Legally Transferred ?
"
This question perhaps is straight forward : ( I have other questions but well address them in another post )
Background Information :
Property is Zoned Rural Residential .Property is more or less rectangle shaped and for discussion lets call it
Sides A,B,C,D, :
Property in Question adjoins my property Line on part on one small Part ( Lets call it side " D " ) .
The " Title Insured " yet undeveloped Access to be developed ( or you could say not yet developed ) Has frontage on a State Highway , The " Title Insured Access " side of the property is no where near my property ( lets call it side " A ") by several Acres .
The " Claimed " prescriptive easement is not on my Title Report
The Property Claiming the prescriptive easement Access is large some 10 Acres .
The Cost to Develop the Access at the Title Insured Access well be a Lot ( Costly ) but Planning Office says it can be done .
To Explain in part : when I say " Claimed " this is why ( humm perhaps this well not be so easy )
(1) The Property has never been developed and is raw land with no buildings well or any development of any kind
(2) County States that since the property is raw land , with nothing on it and such that the County feels no prescriptive easement exist . In writing on county stationary from planning and building signed and dated
The road on my Property is a Private Road all surveyed and not on their Property in any way . No Easement on my Title report
Property has resonantly Changed hands and the New Owner is" claiming " a prescriptive easement that the former Owner Also " Claimed " but never used . Former Owner came 10 years ago and told me my " Private " Property's Road was their prescriptive easement to their Property but I Never saw them come again in More then 10 Years .
California Law states related to prescriptive easements that any prescriptive easements not used over 5 Years become extinguished .
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Quote from that Law :
A prescriptive easement is lost by at least five years of nonuse. In other words, even if a prescriptive easement did exist at some time, if the owner of the property shows that the prescriptive easement was not used for at least five years, then the prescriptive easement was extinguished, even if the property owner did not prevent anyone from using the prescriptive easement and even if the property owner did not use the easement itself. [Code Civ. Proc. § 321; Civ. Code § 811(4); People v. Ocean Shore R. (1948) 32 Cal.2d 406, 419; 12 Witkin, Summary of California Law (10th ed. 2005); Real Property, § 424, p. 496; Miller & Starr, California Real Estate (3rd ed.) § 15:38, p. 15-252.]
Also, the person seeking to establish a prescriptive easement must prove, by clear and convincing evidence, that the use which he intends to make of the alleged easement is the same as the actual use under which the alleged easement was used by his predecessors in interest. In order to determine whether this is the case, the jury would have to consider:
The physical character of his proposed use ofthe alleged easement, compared to the use of his predecessors;
The purpose of his proposed use ofthe alleged easement, compared to the use of his predecessors; and
The relative burden caused to the property owner by the use ofthe person seeking to establish the prescriptive easement, compared to the use of his predecessors.
The nature, scope, and extent of the use in question must not substantially increase the burden placed on the property owner’s property as it existed during the prior use during the prescriptive period. [Civ. Code § 806; Camp v. Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Ca1.3d 845, 866-867; Neff v. Ernst (1957) 48 Ca1.2d 628,636; O’Banion v. Borba (1948) 32 Cal.2d 145, 153; Anderson v. Southern California Edison Co. (1926) 77 Cal.App. 328, 355; Sylva v. Kuck (1966) 240 Cal.App.2d 127, 135; Pipkin v. Torosian (1973, Fifth Dist.) 35 Cal.App.3d 722,727; Hill v. Allan (1968) 259 Cal.App.2d 470, 484; Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 850, 851; Connolly v. McDermott (1984) 162 Cal.App.3d 973; 6 Miller & Starr, 3d, section 15:58.]
My question involves an " Claimed " Prescriptive Easement in the state of: CALIFORNIA
Hello Everyone Happy Holidays :
***************************
OK THIS IS THE QUESTION ? :
Related to this property: is the "transfer of a " claimed " prescriptive easements " Legal ? , allowed ?
************************************************** **************************************
since the County where I Live says they ( Former Property Owner) have no prescriptive easement and I know of none ? , Title Company Know of none ?
Then Can someone tell me How a " Claimed " prescriptive easement rather then a " actual used prescriptive easement "
can be transferred ?
I Hope I am Clear : What I am Saying is this in other words : I can understand that a prescriptive easement perhaps used to access a property for years ( at least 5 years in CA. ) could be Transferred .
But is not a " Claimed " unused prescriptive easement to a Property completely undeveloped something that could not be Legally Transferred ?
"
This question perhaps is straight forward : ( I have other questions but well address them in another post )
Background Information :
Property is Zoned Rural Residential .Property is more or less rectangle shaped and for discussion lets call it
Sides A,B,C,D, :
Property in Question adjoins my property Line on part on one small Part ( Lets call it side " D " ) .
The " Title Insured " yet undeveloped Access to be developed ( or you could say not yet developed ) Has frontage on a State Highway , The " Title Insured Access " side of the property is no where near my property ( lets call it side " A ") by several Acres .
The " Claimed " prescriptive easement is not on my Title Report
The Property Claiming the prescriptive easement Access is large some 10 Acres .
The Cost to Develop the Access at the Title Insured Access well be a Lot ( Costly ) but Planning Office says it can be done .
To Explain in part : when I say " Claimed " this is why ( humm perhaps this well not be so easy )
(1) The Property has never been developed and is raw land with no buildings well or any development of any kind
(2) County States that since the property is raw land , with nothing on it and such that the County feels no prescriptive easement exist . In writing on county stationary from planning and building signed and dated
The road on my Property is a Private Road all surveyed and not on their Property in any way . No Easement on my Title report
Property has resonantly Changed hands and the New Owner is" claiming " a prescriptive easement that the former Owner Also " Claimed " but never used . Former Owner came 10 years ago and told me my " Private " Property's Road was their prescriptive easement to their Property but I Never saw them come again in More then 10 Years .
California Law states related to prescriptive easements that any prescriptive easements not used over 5 Years become extinguished .
************************************************** ******************************************
Quote from that Law :
A prescriptive easement is lost by at least five years of nonuse. In other words, even if a prescriptive easement did exist at some time, if the owner of the property shows that the prescriptive easement was not used for at least five years, then the prescriptive easement was extinguished, even if the property owner did not prevent anyone from using the prescriptive easement and even if the property owner did not use the easement itself. [Code Civ. Proc. § 321; Civ. Code § 811(4); People v. Ocean Shore R. (1948) 32 Cal.2d 406, 419; 12 Witkin, Summary of California Law (10th ed. 2005); Real Property, § 424, p. 496; Miller & Starr, California Real Estate (3rd ed.) § 15:38, p. 15-252.]
Also, the person seeking to establish a prescriptive easement must prove, by clear and convincing evidence, that the use which he intends to make of the alleged easement is the same as the actual use under which the alleged easement was used by his predecessors in interest. In order to determine whether this is the case, the jury would have to consider:
The physical character of his proposed use ofthe alleged easement, compared to the use of his predecessors;
The purpose of his proposed use ofthe alleged easement, compared to the use of his predecessors; and
The relative burden caused to the property owner by the use ofthe person seeking to establish the prescriptive easement, compared to the use of his predecessors.
The nature, scope, and extent of the use in question must not substantially increase the burden placed on the property owner’s property as it existed during the prior use during the prescriptive period. [Civ. Code § 806; Camp v. Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Ca1.3d 845, 866-867; Neff v. Ernst (1957) 48 Ca1.2d 628,636; O’Banion v. Borba (1948) 32 Cal.2d 145, 153; Anderson v. Southern California Edison Co. (1926) 77 Cal.App. 328, 355; Sylva v. Kuck (1966) 240 Cal.App.2d 127, 135; Pipkin v. Torosian (1973, Fifth Dist.) 35 Cal.App.3d 722,727; Hill v. Allan (1968) 259 Cal.App.2d 470, 484; Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 850, 851; Connolly v. McDermott (1984) 162 Cal.App.3d 973; 6 Miller & Starr, 3d, section 15:58.]
Transfer: Transfer of a " Claimed " Prescriptive Easement
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