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Not So Smart Common Sense (Part 1 of 2)

Columnist: Susan M. Teel
July, 2011 Issue

Susan M. Teel
All articles by columnist
Recently, my client “Joe” called to get some quick advice. He was looking for confirmation that he’d handled a vexing real estate issue related to his business correctly. This “after the fact” search for legal advice occurs frequently. He said he thought the “common sense” tack he’d taken would probably be enough to cover the issue. I listened and nodded to the telephone. After all, common sense guides most of us—most of the time—and that’s a good thing. However, when issues involve protecting important and often convoluted real property rights, common sense solutions can sometimes be dangerous.

I brought in my colleague, Paul Carey, Esq., who’s a real estate expert and litigator. I knew he could sort through the morass of property law rules that are counterintuitive versus those that fall along common sense lines. When it comes to the rules relating to “prescriptive easements,” I recognized the necessary advice involved complexities. A prescriptive easement is a legal right of access across another’s property that arises from longstanding open use (at least five consecutive years), hostile to the actual property owner’s rights or under the user’s “claim of right,” including a claim based on a mistaken belief that a legal right already existed.

Paul took over, and the case, as Paul tells it, unravels:

Joe was the property owner. His neighbor, Jane, told him he could no longer use an access road that crossed her property because she intended to plant a vineyard over the road and surrounding area. Although Joe’s property didn’t benefit from a deeded easement over the road, he’d been using it for more than 20 years to service a vineyard on his property. During the first 15 years he’d been using the road, he believed he had a right to use it and had never asked permission from Jane or the owner prior to Jane (her predecessor). And for the whole time Joe had been using the road, neither Jane nor her predecessor had ever taken steps to protect their property from the creation of a prescriptive easement. Under the rules of law relating to prescriptive easements, Joe could have protected his right to continue using the access road in dispute, but his lawyer’s ability to do that after the dispute arose was compromised by the fact that Joe had pursued what he believed to be a common sense solution to his problem several years before he sought legal advice.

Specifically, a few years before the dispute arose, Joe discovered he didn’t have a deeded easement over the road. Common sense told Joe he should do something to confirm and preserve his right to use the road. Joe told Paul: “Don’t worry, when I found out I didn’t have a deeded easement, I made sure I protected my right to use the road by contacting my neighbor (Jane’s predecessor) and confirming that I had his permission to use the road. I then documented that permission in a letter.” Pleased with his rational, proactive approach to the problem, Joe proudly produced a copy of the letter for Paul, then watched in dismay while Paul sadly shook his head and told Joe he should have seen an attorney before doing anything.

While common sense told Joe that getting his neighbor to acknowledge he could continue using the road, the law didn’t. What Joe didn’t know was that a prescriptive easement cannot exist when the use relied on to support the creation of the easement is permissive. Put another way, permissive use by definition isn’t “hostile” or “under a claim of right” as required by the statute, and therefore cannot support the existence of a prescriptive easement. Joe needed to prove he had a prescriptive easement.

Although Joe could still assert his claim to a prescriptive easement based on the rule that one “vests” immediately after five consecutive years of adverse use (which, in his case, had occurred long before he secured permission); and the fact that his more recent request for permission was based on a mistaken belief that it would preserve his right to use the road, his common sense self-help effort made it more difficult for Paul to protect Joe’s easement. This is because Joe had inadvertently created evidence that his neighbor Jane could use to try to prove that Joe never really did believe he had a right to continue using the easement and therefore couldn’t prove his use was hostile or under claim of right. (Otherwise, why would he have felt he needed to ask his neighbor’s permission?)

The moral of the story is this: When it comes to the some of the more antiquated rules relating to real property, talk to a real property attorney with experience in the particular area of the law involved before you do what common sense suggests.

[Part 2 coming next month: Could Jane and her predecessor have done anything to protect against the creation of a prescriptive easement in Joe’s favor? Yes…]

Author’s note: I confess Joe is really a hypothetical client for purposes of this column, and the fact pattern is a composite of several commonly encountered types of real estate cases. While my colleague, Paul G. Carey, Esq., and I co-authored this column, Paul was responsible for the major legal reasoning and fact analysis. Paul is a director of Dickenson, Peatman & Fogarty and specializes in real estate matters, particularly litigation. His primary office is located in the DP&F Napa complex and he’s frequently available in the Santa Rosa office.  


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