Blog Archives

“Adverse” Element for Adverse Possession/Prescriptive Easements

One of the factors for obtaining a prescriptive easement or adverse possession is that the use of land must be “adverse” to the true property owner. What does “adverse” mean? The term “adverse use” “means only that the owner has not expressly consented to [the use] by lease or license….” (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450, 17 Cal.Rptr.3d 135 (Felgenhauer).) The 2006 case of Aaron v. Dunham, 137 Cal.App.4th 1244, provides insight on what the adverse term means.   It provides as follows: “Adverse use” means only that the claimant’s use of the property was made without the explicit or implicit permission of the landowner. As explained in Felgenhauer: “Claim of right does not require a belief or claim that the use is legally justified. [Citation.] It simply

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Posted in Adverse Posession, Prescriptive Easement

Whose Property Line is it, Anyway?

Imagine coming home to find that your neighbor has built a wall on your driveway, or another part of your property. Somehow, some time ago, someone may have made a mistake. But does that mean drastic changes to what you’ve grown used to for over 25 years? Maybe not. The story in this video addresses what is called an “easement.” We know what easements are whenever the power goes out and a lineman has to climb the utility pole behind your house. If you are familiar with this, then you may  own your property subject to the condition that you allow the utility company to enter your property to work on the pole. In other situations, such as a long driveway serving more than one home,

Posted in Prescriptive Easement

5 Things to Consider With Neighbor Lot Line Disputes

What is a neighbor dispute or a lot line dispute?   Typically it is a dispute amongst adjacent owners of real estate concerning their boundary lines and whether either party has developed the right to extend beyond their legal property lines.  In this post, our Los Angeles based real estate attorneys discuss 5 things to consider whenever you are dealing with a lot line, boundary or neighbor dispute. 1.  Is there a survey?  All boundary disputes should start with a survey.  After all, how can either neighbor argue that the other neighbor is exceeding their legal boundary lines without a marker and a licensed survey.  We always recommend getting a survey first. 2.   Use.   This is a key question.  In particular, if one

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Posted in Easement, Equitable Easement, Lot Line Disputes, Prescriptive Easement, Real Estate Attorney Los Angeles

Easy Easements: Is there Such a Thing?

At Schorr Law our Los Angeles based easement attorneys have extensive experience litigating, drafting and negotiating all types of easements. We are constantly asked to give advice regarding whether an easement is obtainable and how easy it will be to obtain.  This is a very tough questions and the answer changes depending on the facts of your particular case. Of course, each case is different and the relative ease in getting an easement in one case does not mean that there will be a very long and hard fought battle over an easement in another case. We have had easements resolved at first contact and others that do not get resolved before years of hotly contested litigation.  Because we know that easements can be difficult

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Posted in Easement, Easement by Necessity, Equitable Easement, Express Easement, Prescriptive Easement

Revival of an Easement by Merger

In a recent post, we discussed how easements can be terminated by merger. In this post, we will discuss how an easement extinguished by merger can be revived. Although an easement is extinguished by a merger of the dominant and servient estates, there are certain situations where the extinguished easement will be revived. The first situation is where there is an implied grant or reservation. Specifically, an extinguished easement may be created by an implied grant or reservation if: (a) the common owner continues to use it to benefit the quasi-dominant tenement; and (b) the common owner then conveys one of the parcels to a third party. (Silveira v. Smith (1926) 198 Cal. 510, 517.) The second situation occurs where an extinguished easement is recreated via prescription. In

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Posted in Easement, Prescriptive Easement

Equitable Easements in California

As we have discussed in previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement based on principles of equity. In certain situations where you cannot establish a prescriptive easement for a physical encroachment, you may be able to establish an equitable easement. In fact, most, if not all, cases that grant equitable easements arise out of physical encroachments that otherwise qualify as prescriptive easements. (See Christensen v. Tucker (1952) 114 Cal.App.2d 554 [affirming an equitable easement to maintain concrete wall encroaching on neighbor’s property]; Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 [affirming an equitable easement to maintain extensive landscaping and irrigation encroaching on and under neighbor’s property]; Field-Escandon v. Demann, supra, 204 Cal.App.3d 228 [affirming an equitable easement

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Posted in Easement, Equitable Easement, Prescriptive Easement

Obtaining a Prescriptive Easement in California

As we discussed in previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement by prescription.  Establishing a Prescriptive Easement To establish a prescriptive easement, a claimant must prove use of the property, for the statutory period of five years, which has been: (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under a claim of right. (Main Street Plaza v. Cartwright & Main (2011) 194 CaL.App.4th 1044, 1054.) Generally, the claimant has the burden of proof of proving each of the elements necessary to establish that the easement has been created by prescription. (Code Civ. Proc. § 321.) Whether the easement satisfies the above requirements is considered a question of fact.

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Posted in Easement, Prescriptive Easement

Easements by Necessity for Landlocked Land

At Schorr Law our real estate attorneys frequently deal with all sorts of easement disputes whether they be boundary disputes among commercial real estate neighbors, boundary disputes among residential real estate neighbors or disputes trying to establish a new easement through various methods. One type of issue that can arise is what can you do with landlocked land.  Landlocked land is land that has no method of ingress or egress – no way in or out other than to go over the land of another.  In this situation, an easement by necessity may be created.  The background for an easement by necessity comes from the public policy that land should not be rendered unfit for occupancy or cultivation.  In other words, the law frowns on the idle

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Posted in Easement, Easement by Necessity, Egress Easement, Equitable Easement, Ingress Easement, Prescriptive Easement

Easements and Permanent Encroachments

One of our favorite types of disputes of late are easement disputes involving permanent encroachments on a neighbor’s land.  These disputes come in all types of forms – retaining walls, driveways, patios, trees, fences- you name it and we have probably seen it.  Ultimately, these disputes wind up involving some variation of claims for trespass, nuisance, prescriptive easements and equitable easements. What many non-real estate attorneys fail to realize, unlike our real estate attorneys at Schorr Law, is that there is a well developed legal precedent that says that an encroacher cannot maintain a permanent structure and get a prescriptive easement over another’s land because the encroaching structure amounts to exclusive use and easement are non-exclusive in nature.  That said, when attorneys know this rule

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Posted in Easement, Equitable Easement, Prescriptive Easement

What is a Prescriptive Easement and How Does it Differ From Adverse Possession?

A prescriptive easement can be created by: (1) continuously using the property for 5 years; (2) in a manner that is open, notorious, and clearly visible to the owner of the land; and (3) hostile and adverse to the owner. In other words, someone who has no ownership interest in your property (a trespasser), can obtain an easement by prescription, aka without your express permission, if they openly use your land without your permission for a period of 5 years without interruption.  So for example, if your neighbor creates a path across your property to the woods where he hunts, and he uses the path for 5 years without any objection by you, your neighbor can obtain a prescriptive easement to use that path.  This

Posted in Adverse Posession, Prescriptive Easement

Zachary D. Schorr’s Expert Appearance on the Dr. Phil Show

Zachary D. Schorr’s Expert Appearance on ABC’s Nightline

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Zachary D. Schorr has been named to the Southern California Super Lawyers (Rising Stars) list for attorneys in Real Estate for 5 straight years - 2012, 2013, 2014, 2015 and 2016. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. In 2016 he was also included as one of the top 100 lawyers in Southern California in this category. The selection for this respected list is made by the research team at Super Lawyers.

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