What do you do if your neighbor has been using part of your property without permission, or your knowledge, for years?
First, you should review your deed to see if your neighbor’s property has a legally recorded right to use your property. Many times, an easement might be recorded and part of the deed to your property for a variety of reasons: to allow neighbors to use part of your driveway to access their property, allow the public access to cross through, or with even greater frequency, to allow utilities companies like PG&E access rights related to maintaining and servicing the utilities.
If your neighbor has been using your property and there is no recorded easement, it may be a prescriptive easement. This means that your neighbor’s use of your property is without your permission. In order to have a prescriptive easement, it must be shown that: (1) the land was used continually for five years; (2) the land was possessed in a manner that was open, notoriously and clearly visible; (3) the land use was hostile and adverse to the true owner; (4) it was used under a claim of right.
If the land has been used in a way to satisfy this criteria, this will allow the encroacher continued use of the land. The rightful owner of the land will still have a continued right to use the land. If you are the rightful owner of the land, you do not have a right to suddenly close of the encroachers use of your right.
A prescriptive easement is not automatically created and requires judicial determination through litigation. The law related to easements is also very fact specific and needs legal analysis related to your particular situation. If you have a concern related to such matters, you're welcome to contact real estate attorney Elena Rivkin Franz at (408) 940-5360 or firstname.lastname@example.org