Easement and agreement between two properties for a right of way and restrictions for use, access and maintenance of a driveway and parking lot.
An easement gives one party the right to go onto another party's property. That property may be owned by a private person, a business entity, or a group of owners. Utilities often get easements that allow them to run pipes or phone lines beneath private property. Easements may be obtained for access to another property, called "access and egress", use of spring water, entry to make repairs on a fence or slide area, drive cattle across and other uses. The easement is a real property interest, but separate from the legal title of the owner of the underlying land.
In the case of a driveway easement, it allows the person who is the beneficiary of the easement to cross the "servient" property. The land which receives the benefit of the easement is called the "dominant" property or estate. A driveway easement may be created by recording a deed that states, for example, that one neighbor owns the driveway to the halfway point, but has an easement or right of way to use the remainder; however, the adjoining home owns the other half of the driveway, with a right-of-way with respect to the portion the neighbor owns. An easement may be claimed by prescription for the use of the driveway. This requires proof that your neighbor willingly abandoned his use of the driveway during the adverse period when you and your predecessor in title enjoyed the exclusive use of the driveway. Easements should describe the extent of the use, as well as the easement location and boundaries. For example, if an easement is created for the driveway for one house, the owner of the easement cannot turn his house into a hotel with many cars travelling over the easement if the easement was intended for use by a single family.
Driveway Easement Sample With Easement
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US-EAS-33
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FAQ
To establish a prescriptive easement in California, the adverse use of the land must be open, notorious, and continuous for at least five years. The open element requires the easement user to engage with the land in an open way, which can usually be ascertained by whether it appears the user is doing so in secret.
The landowner can grant the easement and record it at the county clerk's office, or the landowner can imply it without any written action required. It becomes an encumbrance, or claim, on the land's title once it is recorded and registered.
An easement may be recorded in the public real estate records or other regulatory agency records; however, an easement may exist without recordation.
The easement does not technically need to be recorded, but an unrecorded agreement may not be ultimately enforceable in a court of law, so ensure that any written agreement is properly and legally recorded to avoid contentions in the future.
In California, a user of land may establish a prescriptive easement by proving that his or her use of another's land was: (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile. The first two requirements are relatively straightforward.