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What are "trespass" and "easement"?

Trespassing

Howard Gould (Neighbor Law Expert, Finestone & Richter) gives expert video advice on: What are "trespass" and "easement"?; Is trespassing a criminal act? and more...

What are "trespass" and "easement"?

Trespass is entry onto a neighbor's property without permission, which nobody has the right to do. An easement is actually a right to use someone else's property, it's usually a recorded document and the typical kinds of easements that you see, the two most frequent, are an easement for what's called ingress and egress such as a roadway or a sidewalk, a walkway over your neighbor's property. And the other frequent easement is one for utility purposes where the utilities to your house may actually run across a neighbor's property. You'd need get an easement, which would need to be in writing and would need to be recorded, that would give you or anybody who buys your property from you the right to use your neighbors property. In urban areas there are easements of all kinds and they're very common, especially the roadway easements and the utility easements.

Is trespassing a criminal act?

You might call the police if somebody is trespassing. There are criminal statutes that prohibit people from entering another person's property without permission. If the assistance of the police is not proving useful then you may need to go to court, probably hire a lawyer and get some sort of court order that you can enforce to stop trespassing.

Is it possible to revoke an easement?

You cannot generally revoke an easement unless, by its own terms, it can be terminated or limited. Sometimes you get what's called a license, which is similar to an easement, but it generally is revokable although it can be irrevokable and sometimes it's not actually quite the same use of a property and it may be some lesser use than, actually, a roadway or a walkway or putting your cable lines under the neighbor's property. So licenses are usually the sort of device that's used if you want it to be revocable. But usually easements are irrevocable because they're the kind of use that you really cannot use your property without the permanent easement in place, and you can't transfer that right to somebody to use your property, you can't sell your property without that easement. You can imagine if somebody has a lot and they divide into three and there's a front lot, a middle lot, and a back lot and there's a roadway that goes to access the lots in the middle and the back. Those lots would be virtually valueless if they didn't have that ingress and egress easement so that you could drive into your property. That's got to be permanent. So almost never are you going to want an easement to be something that's less than permanent because it generally is crucial to the use of your property.

What is "ingress" and "egress"?

Ingress is when you're going in, and egress is when you're coming out. So when we say ingress and egress, what we're talking about is a walkway, a roadway or a driveway - some means of getting in and out. One interesting thing about easements is that an easement is limited by it's own terms. So if you have an easement for ingress and egress - and those are the terms that will probably be in the easement - over your neighbor's property, that doesn't necessarily mean that you can then put your utilities in that easement. Your rights are defined in the terms of that easement, and generally you can't use the easement for other matters. For example, let's say you want to park your car there. Well, if that's going to interfere with somebody coming in and out, and that's not a right that's given in the easement itself, you may not be able to do that.

What is adverse possession?

Adverse possession is a legal theory that allows even a trespasser, to obtain title to someone else's property if they have been using it for a long enough period of time and under the proper circumstances. The theory behind it is that we want property to be put to gainful use and we want it to be used in a way that is beneficial to someone rather than laying without use by some owner who is paying no attention to it. That's why this theory developed to allow even a trespasser to obtain title to someone else's property.

Can you revoke any permission you give?

Yes, you can revoke the permission by, again, giving notice that the person is no longer allowed to continue with the use and then requiring them to stop the use. It may be that you'll say, “Use is revoked.” Close the gate. Put up a fence. Do something like that if it's a prescriptive easement that somebody's using to come across your property. Say it's a situation where, for example, the neighbour has put part of their driveway on your property; maybe they've put up a little entry-gate keypad on your property (and I've had this specific example), and you tell them, “I'm now revoking the consent I gave you,” and they refuse. Now, you're going to need to go to court and get an order for them to remove whatever they've put on your property. This is not a case where you can use self-help. It doesn't matter if it's a fence or something else like that; you cannot use self-help. Let's say your neighbour puts up a fence, he put it up in the wrong place, and he put it on your property. If he refuses to take it down, you should go to court and get an order that requires him to take it down. If you go take it down yourself, even though he was in the wrong, he may have a claim that he can take to court against you for removing his fence. In general, the law does not allow self-help. The only case where you can use self-help is if somebody has their tree branches hanging over your property; then you can trim them back to the property line as long as long as you do it in a reasonable manner without destroying their tree. Other than that example, don't use self-help.

What is an "agreed boundary"?

In situations where we have boundary line disputes, there is a theory developed in the law, that's recognized here in California, called "agreed boundary." The concept is that two property owners who are uncertain about the boundary do have the right to get together, make an agreement as to what the actual boundary is and, if sufficient period of time passes, then that can be recognized as the actual boundary between the properties, even though perhaps a survey may have located the boundary line for the two owners. Basically if someone tries to use this in a legal proceeding, what you need to show is that there was uncertainty as to the true boundary line between the two properties, and the adjacent owners made some agreement as to where the boundary line would be. Then those two owners, or their successors, accepted and acquiesced in that agreed line for the perscripted period, which in California is only five years. If you can prove all of these elements then that boundary line can be accepted by a court as an agreed boundary line.