Do I Have an Easement by Necessity?

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

“We live in California; there is a space of approximately 12 inches between the wall of our house and the surveyed property line. We have painted our remodeled home on three sides and our neighbor is denying us access to use the area beyond the 12 inches (which is on his property) to paint the wall. Do we have an implied necessity easement for maintenance/repair? If so, could you provide some legal authority since our neighbor will not take our word for it.”No.

Question: An “easement by necessity” is a very limited concept, and generally only applies when someone subdivides a piece of property, leaving one of the resulting parcels “landlocked” with respect to the roads.However, you may have some other source of right to use the property for the purpose of painting. First, having a wall that close to the property line is unusual; many cities have a minimum setback from the side property lines. If you (or a previous owner) were required to get a variance for this construction, it may have included some reference to this problem.

Another possibility is that you may have a prescriptive easement for this purpose. If you and/or the previous owners have used your neighbor’s property without permission for the purpose of painting your house, and have done so for the past five years (note that the time period is different in different states), then you may have a legally-protectable right to continue doing so. The rules regarding prescriptive easements are pretty fact-specific, so you’ll have to consult with an attorney to be sure. You should also be aware that enforcing such a right involves a lawsuit, and you can expect it to be expensive and time consuming.
It might be more productive to look for a creative (and more neighborly) solution. Depending on the reason for your neighbor’s refusal, you may be able to reassure him that you will replace any squashed begonias or what have you. Or, you may be able to out-and-out pay him for the use of the property (it’ll be cheaper than a lawsuit). Finally, if all else fails, you may need to spend the extra money it’ll cost to have a painter jury rig something so they can paint the wall without trespassing.