Question: I own a small piece of vacation property up on the coast that I inherited a few years ago. My aunt lived there, and my wife and I stayed up there for a while until we permanently moved down to Davis.
We have put the house up on rental websites like AirBnB, and we still go back and use the place ourselves frequently. From the back of the property, there is a well-worn path that cuts, in part, over the neighbor’s property in order to get down to a park that ultimately connects to the beach. I know that my aunt would take the path for evening walks because I would do so with her.
The neighbor never objected to my aunt and not to my wife and me using the path, but he recently built a fence blocking access to the pathway at his property line. My wife and I spoke with him about the fence, and he told us that the use of the path was getting out of control – that our “constant stream” of guests are too disruptive.
I told him that I always thought and still believe there is an easement for the path, but he told us that he spoke with his lawyer who told him that the law prevents a public easement across his land to get to the park. The pathway from the backyard that eventually leads to the beach is a big draw for our guests and a real benefit for the property. Without it, you have to make a long drive all the way inland and then cut all the way back to get to the beach. What rights do we have to use the path? How do we get him to remove the fence?
Answer: There have been some high-profile cases about the public’s right to access the beach, but you indicate that the beach here is accessible from the park. Your question is about your ability to access the park over your neighbor’s property.
You are correct that the issue is about an easement, the right to use the land of another. A person may own real property, but ownership of property is not absolute. A neighboring property owner like you may have a right of use over the land of another. While some easements are specified for only a particular person’s use, others are classified as “appurtenant,” which means that the easement is connected to the property. Such an easement “runs with the land,” and the right of use extends to future owners like you.
The terms of an easement are usually set forth in the legal description of real property in the grant deed. For example, your neighbor’s deed might include language that reserves the right to use the path to you as owner of your parcel. If you have an express easement over your neighbor’s property, he cannot interfere with your use of the land. The fence will have to come down.
Even if you do not have an express easement, you may have acquired a right of use from your longstanding use of the property. Your aunt’s use of the property, your use of the property, and even your guests’ use of the property may have ripened into a “prescriptive easement” over your neighbor’s land. When a person can show that the land of another has been used in a certain manner over a certain period of time, it may be possible to obtain a prescriptive easement over that land. Like an express easement, the existence of a prescriptive easement prevents your neighbor from interfering with your use.
Your neighbor raises an interesting issue regarding the path’s connection to the park. Back in the early 1970s, the California Supreme Court determined that a private landowner, who allows the public to use the land for recreational purposes, could effectively transfer a right to use the land to the public. This is known as an “implied dedication.” After the court decision, private landowners were confronted with the fear that public use of their private property might result in loss of rights. So the state legislature created a statute to offer protection of private property rights against the creation of an easement by the general public.
It sounds like your neighbor is saying that you can’t have an easement because this law prevents you from getting one. The law prevents the development of a public easement for use by the public. Your use, however, is entirely private. The AirBnB guests may appear to be the “general public” to your neighbor, but their use of the path is tied to their staying in and renting your residence. This is private use.
You should contact a real estate attorney to advise you in this matter, particularly since your neighbor appears to have representation. It would appear that your neighbor’s main issue is with your guests’ use, and perhaps the two attorneys may be able to work out a compromise that saves you all from court action. But if you and your neighbor cannot work this out, you will likely need to go to court to get the fence taken down and get back your path.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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