Easements: What Agents Need to Know

Encroachments — whether a seller's use of a neighbor's property for a garden, a fence built over a boundary line, or a driveway that extends onto adjacent land — are a common source of title complications in South Bay real estate transactions. Can the buyer expect the neighbor to continue permitting it? The answer is: not necessarily.

To establish a prescriptive easement in California, the seller must demonstrate that the use was visible, open, and notorious (meaning the neighbor knew about it), there was never expressed permission, and the use was continuous for at least five years. If the seller cannot establish these elements, the use may constitute an encroachment and a trespass.

Never assume a neighbor will continue to allow an encroachment. Unless a prescriptive easement is legally confirmed and recorded, the neighbor could file a complaint, force removal of the encroachment, and bar your client from crossing the actual property boundary line.

There are options: the seller (if discovered before close) or the new buyer (if after close) could negotiate a settlement in return for compensation. Alternatively, the parties could agree that an easement will never be granted, but the neighbor will give revocable permission — a 'license' — to use the property. In any event, once the issue is raised, the parties must consult counsel and resolve it before close of escrow.

Team Goeglein at Fidelity National Title identifies easement and encroachment issues during the title search and flags them proactively for agents in Manhattan Beach, Hermosa Beach, Redondo Beach, and across the South Bay. If you see easement language on your prelim, contact Matt Goeglein or Xavier de la Piedra IV immediately — they'll explain what it means and what needs to happen next.