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Q: Zero clearance property easements ( Answered,   6 Comments )
Subject: Zero clearance property easements
Category: Miscellaneous
Asked by: quilter41-ga
List Price: $200.00
Posted: 03 Jun 2006 18:40 PDT
Expires: 03 Jul 2006 18:40 PDT
Question ID: 735103
I purchased a home and remodeled.  The property is a zero clearance
property.  At the time I was not told that there was indeed a 5 ft
easement on my neighbors property for me to work on my house.  Neither
the HOA or Property Management Company were aware of this, I had to
get the information from the city.  After 6 months my neighbor will
still not let me on the property.  This has caused my loss of revenue
due to inability to finish construction (stuccoing an outside wall),
lawyers fees, stress and harressment problems with said neighbor.  No
one anywhere seems to have an answer, not even the lawyers.  The HO
and Property Managers will not get involved.  They want us to work it
out, however our neighbor will not speak to us, refused arbigtration
and has told all the other neighbors he won a law suit against me,
there was none, and bad mouths me to everyone.  The other neighbors
know this person is a trouble maker and they do not want to have
anything to do with him.  They have all been very nice to us and wish
there was something they could do.  I am very over budget on my
project since I planned on putting it on the market 5 months ago. 
Please, can anyone help.  Also this person is a licenced California
realtor as is his significant other.

Request for Question Clarification by pafalafa-ga on 04 Jun 2006 05:27 PDT

I'd love to be able to help you on this one, but I don't quite
understand what problem you're having.

Can you spell out the situation in a bit more detail?  You said your
neighbor "will not let me on the property".

How and why are they able to stop you, even with a zero clearance
situation?  Is there or isn't there a 5 ft easement?  What was your
understanding when you purchased the property, and what has changed?

Also, what city or county in California is all this taking place?

The more you can tell us, the better the chances we can help. 


Request for Question Clarification by pafalafa-ga on 04 Jun 2006 15:23 PDT

I think I've found some information that can help you out, but it
really would help to have some additional details from you, first, as
I mentioned earlier (in the comment, above).

In particular, I'd like to know:

1.  Is there an easement?  Your sentence says you were "...not told
that there was indeed a 5 ft easement on my neighbors property..."  So
it certainly sounds like the easement is in existence.  Can you

2.  If there is, in fact, an easement, what does it say, in a
nutshell, and what's preventing you from doing the work on your house?

3.  You mention the "lawyers" not having an answer for you.  This is
surprising, as there certainly seem to be grounds to seek legal
remedies.  What did you tell the lawyers, and what did they tell you?

From what I can see, if a neighbor denies you access, and causes you
an economic loss, then they *may* be liable for that loss under
certain circumstances.  There are certainly examples of legal actions
in California where this has been the case.

Let me know what you can.

Subject: Re: Zero clearance property easements
Answered By: pafalafa-ga on 08 Jun 2006 06:47 PDT

The thing that surprised me the most about your situation was your
statement that the lawyers you consulted couldn't help you at all.

I don't know, of course, what sort of conversations or consultations
you had with lawyers, but it certainly seems that there are
well-established legal principles in California that could be helpful
to you in your situation.

Before proceeding, however, please take note of the disclaimer at the
bottom of the page.  I am not a lawyer, and Google Answers is no
substitute for professional legal services, so please take everything
here with the appropriate grains of salt.

There is a concept in California case law known as an "implied
easement", and a related concept, "easement by necessity".

These are similar, but not the same, but both concepts can 'create' a
legally-binding easement, even if a written record of an easement does
not exist.

As I understand things (and remember, I'm not a legal professional),
the concepts boil down to the following:

An implied easement goes to the intent and history of use at adjoining
properties.  For instance, if a builder subdivides a parcel of land,
builds two houses on them, and creates a single driveway to access
both homes, then it seems clear, in that case, that the intent of the
driveway was to service both properties, even if no actual written,
deeded easement was ever created.  Furthermore, if both homeowners
have been sharing the common driveway for decades, then there is a
well-established history of joint use that adds weight to the implied

An easement by way of necessity focuses less on history and intent,
and more on the current circumstances.  If lands were sub-divided in
such a way that a current property owner cannot have full and ordinary
use of his/her property without creation of an easement, then an
argument can be made for an easement by necessity, and California
courts are frequently sympathetic to such arguments.

Of course, it is the opinion of the courts that is key, in these cases.  

You may well feel that, of course, an easement is implied, or of
course, an easement is necessary.  But your neighbor may just as
firmly feel otherwise.  It is cases like these that often end up
before the courts, where a binding judgement can be made one way or
another as to whether an easement exists.

One interesting facet of all this is that the courts have held that
denial of an easement where one should exist can be grounds for
collecting damages.  In other words, if you suffer a financial loss
from being denied access to work on your house, and a court finds that
an easement does, in fact, exist, then the party who denied you access
may be held liable for your losses.

I mention this not so much to raise hopes that you can go to court and
recover a huge sum of money.  Rather, it is more likely of value to
you as a negotiating point with your neighbor, by letting them know
(or having your lawyer let them know) that they may be incurring a
financial risk if, in fact, an easement is granted.

Below, I have provided citations and excerpts to a few of the relevant
cases in California.  These should provide a bit more insight into
these concepts, and save your lawyer some work in tracking them down.

I trust the information provided will fully meet your needs.  However,
if there's anything else I can do for you, don't hesitate to ask. 
Just post a Request for Clarification, and I'm at your service.

Best of luck,



[This recent case affirmed that an implied easement existed, and also
affirmed that it was appropriate to award damages, since the value of
the property was lowered due to the lack of access]

January 25, 2006

...In this appeal, defendants...challenge a judgment granted in favor
of plaintiff...on her claim that defendants interfered with an
easement for roadway and utilities purposes that she has over their
property for the benefit of her adjoining property, and that such
interference caused her property to decrease in value which resulted
in her having to sell it for substantially less money than she would
have obtained for it if it were not burdened with the...easement
controversy....We find that none of defendants' appellate arguments
has merit, and we will therefore affirm the judgment

...The Nature of Implied Easements...when an owner of two adjoining
pieces of land sells one of them, or the owner of a piece of land
sells a part of it, the purchaser takes the portion sold with all the
benefits that appear at the time of the sale to belong to it, as
between it and the property that the vendor retains...


[This case is frequently cited in implied easement cases]

May 14, 2003

...In this action involving neighboring cattle ranches located on
opposite sides of a canal, plaintiff Dale Sobek sued to prevent
defendants Michael and Martha Gaughan (the Gaughans) from using a road
over plaintiff's property for ingress and egress. The Gaughans
cross-complained to establish their right to use the road as an
easement over plaintiff's land, and the trial court found that they
owned an established right-of-way over plaintiff's property.

...Plaintiff appeals, challenging the trial court's determination that
there exists an implied easement over his property. We shall affirm
the judgment.

[Note mention here of other terms or art pertaining to recognition of easements]
...The Gaughans cross-complained to quiet title in their right-of-way
over the road easement on theories of express grant, prescriptive
right, implied reservation, implied grant, and easement by
necessity...When the case was tried to the court, the Gaughans elected
to proceed on theories of express or implied easement only.

[easement was ultimately found to exist even in the absence of a written easement]
...Plaintiff testified at trial that he purchased the property in
reliance on his real estate agent's representations that there was no
"deeded easement" on the property. Although he was aware that the road
was being used to reach the Gaughans's property from across the canal, was his opinion that "there was no recorded easement, and one
did not exist."


[This case provides a good discussion of easement by way of necessity,
and also shows some of the pitfalls that can arise in the legal
process...the easement of necessity was originally denied by the lower
court, but then established by the appeals court]

No. C037628. 
102 Cal. App. 4th 796; 125 Cal. Rptr. 2d 817 
October 2, 2002

...The judgment is reversed and the case remanded to the trial court
with directions to enter judgment that the Kelloggs have an easement
by necessity across the Garcias' property. The Kelloggs shall recover
their costs on appeal.
...Landowners brought a quiet title action against their neighbors,
asserting an easement by necessity over defendants' property. The
trial court entered judgment in favor of defendants, ruling that an
easement of necessity could not arise, since the common owner of the
two properties when they were originally conveyed was the federal

...The Court of Appeal reversed the judgment and remanded with
directions to the trial court to enter a new judgment that plaintiffs
had an easement by necessity across defendants' property. The court
held that plaintiffs established the requisite conditions for an
easement by necessity across defendants' property, since they
established that there was a strict necessity for the right-of-way,
and that the dominant and servient tenements were under the same
ownership at the time of the conveyance giving rise to the necessity.

...An easement by way of necessity arises by operation of law when it
is established that (1) there is a strict necessity for the
right-of-way, as when a claimant's property is landlocked, and (2) the
dominant and servient tenements were under the same ownership at the
time of the conveyance giving rise to the necessity. A way of
necessity is of common law origin, and is supported by the rule of
sound public policy that lands should not be rendered unfit for
occupancy or successful cultivation. A way of necessity is the result
of the application of the presumption that, whenever a party conveys
property, he or she conveys whatever is necessary for the beneficial
use of that property, and retains whatever is necessary for the
beneficial use of land he or she still possesses. The legal basis of a
way of necessity is the presumption of a granting arising from the
circumstances of the case; this presumption of a grant, however, is
one of fact, and whether a grant should be implied depends upon the
terms of the deed and the facts in each particular case. The law never
imposes an easement by necessity contrary to the express intent of the
parties, since it is based on an inferred intent arising from the
strict necessity of access for the conveyed property. A way of
necessity, having been created by the necessity for its use, cannot be
extinguished so long as the necessity exists. An easement by necessity
may persist even though the original grantor and grantee no longer own
the properties in question.


[Another easement by way of necessity case]

121 Cal. App. 4th 1147; 18 Cal. Rptr. 3d 136
August 25, 2004, Filed

...A family trust that owned a parcel of property brought a quiet
title action against a neighboring property owner, seeking a court
order that the trust held an easement across the neighboring property
to access a paved public road. A common owner of both properties died
intestate and the property was distributed by probate court decree to
his heirs. A dirt road used by the ancestor and others ran across the
property. When the current owner purchased the neighboring property,
he locked the gates to prevent access to the road by the beneficiaries
of the trust. The court ruled that the trust held an easement by
necessity and an easement by implication.

...The Court of Appeal affirmed the judgment only insofar as it found
the existence of an easement by implication and reversed the judgment
only insofar as it found the existence of an easement by necessity,
and remanded to the trial court with directions to modify the
judgment. The court held that an easement by implication can be
created when real property is transferred by court decree, such as
when the owner of real property dies intestate and the property is
divided and distributed to the heirs by court decree. Unless the heirs
of the common owner and the probate court intended the heir inheriting
the property currently held by the family trust to have a parcel with
no access to a public road, they must have intended and reasonably
expected the heir to use the unpaved road to reach her property and
the cabin she later built.


I'm sure you've noticed by now that these cases are not perfectly
parallel to your own situation, and they largely revolve around access
to the property over roads, rather than access for means of affecting

Nonetheless, these are among the more recent cases establishing
precedent over these types of easements, and cases that would likely
be considered by any California court asked to rule in your case as

Again, let me know if there's anything more I can do for you.

Subject: Re: Zero clearance property easements
From: jessaminda-ga on 04 Jun 2006 07:37 PDT
I think by easement quilter41 means a "right" to get to his wall from
their property. My house is the same way, one side acts as the wall
between property lines, therefore I would have to get into my
neighbors backyard to work on one side of my house.
Subject: Re: Zero clearance property easements
From: gregbillingsly-ga on 04 Jun 2006 08:05 PDT
If it were me, I beleive that in order to stucco the wall without
infringing on the neighbors property, I would do like window washers
and attach scafolding from the roof to do the work.

To make it even more unobtrusive, I would perform the work at a time
you noticed that your neighbor was not home.
Subject: Re: Zero clearance property easements
From: ponder852-ga on 04 Jun 2006 18:12 PDT
I am not unsympathetic to your problem however your request lacks
sufficient detail.

(1) Why blame the HOA and the Property Management Company for their
lack of knowledge of the easement when you yourself didn't know and
you considered the property, purchased the property and own the
property. Didn't you check before purchase?

(2) Is the easement created or contained in a written Statute or is it
created, part of and particular to your property or your and your
neighbour's property? In other words is the easement merely an
easement contained in your and your neighbour's title deeds?

(3) If it is part of the title deeds then what is the exact wording of
the easement (leave out names and property identifying details) OR if
it is part of a written Statute then identify which Statute?

(4) Is the easement perhaps limited to necessary or urgent repairs? As
I understand "stuccoing" it is the applying of a cement or sand render
to a wall. Stuccoing an outer wall changes or improves it's appearance
but is not usually necessary to the integrity of the structure.

(5) What has the neighbour got in the 5 foot easement? Is some or all
of their property at risk if you exercise the easement? Are you trying
to exercise the easement without giving proper consideration to the
manner in which you exercise the easement and the risks you put on the
neighbour? Have you offered to cover or insure the risks? What are you
offering the neighbour to stop excess render falling on their property
and to clean up after?

(6) I have trouble believing your lawyer can't find a legal solution.
Have you sought a second opinion or is it that your lawyer proposed a
solution that you simply find unpalatible because, in your opinion, it
will require too much of you in terms of cost and/or time or legal
action? What was the solution they proposed?
Subject: Re: Zero clearance property easements
From: myoarin-ga on 07 Jun 2006 15:02 PDT
In the usual definition, an easement would be documented between the
owners of the two properties, and in this case, probably at the time
your house was built or the HOA document was made.
I think rather that the information you received from the city is
based on a state, county or municipal code that applies generally to
this situation, something neighbors may not like to acknowledge.

Pafalafa is right, if you can tell what county and town this is in,
there is a chance that the information can be found, but since you
have already spoken to the city, it should be easier to ask there
again for details.
Subject: Re: Zero clearance property easements
From: hagan-ga on 08 Jun 2006 07:50 PDT
Just to add a comment to Pafalafa's excellent Answer, you might also
consider seeking an injunction, in addition to damages.  An injunction
would be a court order requiring your neighbor to let you on the
property.  There are two types of injunctions -- prleiminary and
permanent.  The preliminary injunction would be "pendente lite,"
meaning "while the action is pending."  A permanent injunction would
permanently establish your right to enter your neighbor's property for
the purpose of working on your house.

In order to obtain a preliminary injunction, you have to show that you
are likely to prevail on the merits; that the harm to you, of keeping
you out, outweighs the potential harm to your neighbor, of letting you
in; and you may have to post a bond.  But I can tell you that I have
personally worked on cases involving easements similar to yours, in
which the courts have been fairly receptive to the request for
injunction and have permitted access.  After all, what's the real harm
of allowing you on the property, versus the harm that you'll be able
to prove is happening by keeping you out?
Subject: Re: Zero clearance property easements
From: pafalafa-ga on 08 Jun 2006 08:04 PDT
Thanks for adding that, hagan-ga.

It adds even more to my surprise at the original comment that the
lawyers were at a loss for options in this situation!


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