Real Estate: New neighbor claims my driveway is on his property

Tim Jones helps a Suisun City resident who says her neighbor claims her driveway is on her property line.

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Q: I own one of the old Victorian homes in Old Town Suisun. I’ve lived here for almost 20 years now and I’m one of the few people in the neighborhood who have a driveway that leads to a small one-car garage in the back. Most people here have to park on the street. A few months ago some new people bought the house next door. Yesterday I got a letter from them that says they’ve had the property surveyed and the driveway is on their lot. They’ve told me to stop using it because they intend to park their cars on it. Without that driveway there is no way to get a car to the garage behind my house. Like I said, I’ve lived here for 20 years and I know the fellow before me used the driveway too. What do I do now?

A: For the time being, don’t do anything differently than you’ve been doing for the past 20 years. It’s up to your neighbor to decide what to do next.

There’s a number of scenarios in which this dispute could play out.

For starters, they may or may not be right that the driveway is on their property. It may be entirely on your property or split between the two.

The new neighbors will have to produce a survey that will, in all likelihood, show conclusively where the driveway stands.Ultimately though, it may not really matter to you.

There are two ways in which someone can take a property right away from the true owner.

The first is by an ancient series of laws known as adverse possession.

Historically, under adverse possession, if a person, even a complete stranger, takes over a person’s property in such a way that the owner of the property should be able to tell the guy is using it, and they do so for a specific period of time, they may be able to take title to the property. The adverse possessor must treat the property as if it were his by excluding others from using it. Plus, they had to have paid the property taxes.

In California, though adverse possession laws remain on the books, they are seldom if ever used. Why? Because it is almost impossible to pay the taxes for someone else’s property. Even if your driveway is on the neighbor’s property, you haven’t been paying their taxes since your tax bill was based on the assessor’s parcel map.

In days gone by, there were no subdivision maps. The tax assessor would come out, see your fence line and decide how much the taxes would be for what he thought you owned. Today’s assessors simply looks at the assessor’s maps. He doesn’t know or care that there is a driveway on the neighbor’s property.

The other way you take a property right is through a prescriptive easement. This is similar to adverse possession, except all you take is an easement, not ownership. An easement is simply the right to use someone else’s land, typically for a specific purpose. Title to the property doesn’t change.

The requirements are that you use the land for a specific purpose, without the permission of the true owner, for a period of five years. The use must be obvious to the true owner, at least if he were paying attention.

In your case, you’ve been using the driveway for at least 20 years. The driveway has been used for the specific purpose of accessing your garage and the owner should certainly have seen you do it.

Also, it’s not a defense for the neighbor to argue that your previous neighbor didn’t know the driveway was on his property. He is expected to know where his land ends.

You can attack this problem in one of two ways.

You can do nothing and let the neighbor file a lawsuit. You would counter-sue to have the court rule that the easement is yours to use.

Or, you can be proactive and file a lawsuit to have a court make your easement official.

The one shortcoming of having an easement, as opposed to owning the land, is that you undoubtedly want to keep a fence between your driveway and your neighbor’s property. Typically, the owner of the easement (that would be you) cannot keep the owner of the property from also using that piece of land. However, over the past 50 years as subdivisions have come to rule the residential world, courts have increasingly determined that the old rules regarding easements don’t work well in a subdivision environment. A judge could rule that you have the right to keep your driveway, and the fence, the way it’s always existed.

And finally, if the land or any part of it truly belongs to your neighbor, the right answer is to get a lot line adjustment in which the property line is simply moved to where everyone thought it was in the first place.

That’s a process that requires the city’s approval, but which probably wouldn’t be a problem.

Tim Jones is a real estate attorney in Fairfield. If you have any realistic questions you would like to have answered in this column you can contact him at AllThingsRealEstate@TJones-Law.com.

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