California Prescriptive Easements

By Reicker Pfau on Sep 14, 2012 at 01:15 PM in News and Information, Real Estate

As real property values continue to recover, Californians should be wary of the dangers prescriptive easements pose to their property rights. An easement is a certain narrow right to use the real property of another without owning it. A prescriptive easement is an easement right granted at law when one party (the dominant estate) uses or accesses the property of another (the servient estate) for a specific purpose, for a defined period of time, without consent.

Generally speaking, there are four (4) elements to a prescriptive easement in California:

  1. The use of land must be open and notorious;
  2. Continue and be uninterrupted for a period of at least five (5) years (occasional use could establish the prescriptive use right for the same frequency, e.g., on weekends);
  3. Be adverse; and
  4. Subject to a claim of right (i.e., not consented to).

Pursuant to MacDonald Properties, Inc. v. Bel-Air Country Club, the holder of a servient estate must have actual knowledge of its prescriptive use in order for such use to be open and notorious. 72 Cal.App.3d 693. According to Grant v. Ratliff, 164 Cal. App. 4th 1304, in order for the use to be adverse, it must be hostile. To wit, consent is a complete defense to a prescriptive easement. The five (5) year requirement commences when the dominant estate begins to use the servient estate adversely and without consent.

A prescriptive easement can arise from something as simple as a pedestrian crossing a parking lot of a local business once or twice a week to access an adjacent property. While the activity may seem innocuous, after five (5) continuous years of crossing the parking lot, the pedestrian may successfully argue that it is his or her right to do so. Not only is this reality frustrating, but should the pedestrian formalize the prescriptive easement by filing suit, it can cause complications when the servient property owner decides to sell.

The burden of proof is generally on the party asserting prescriptive rights, which must meet the clear and convincing evidence standard.  Connolly v. McDermott. 162 Cal. App. 3d 973. Clear and convincing evidence means that the evidence presented must be highly and substantially more probable to be true than not, resulting in a firm belief or conviction in its factuality.

By their nature, prescriptive easement matters are extremely fact intensive and a case is more easily made with pictures and documentation that illustrate the use and evidence the amount of time that use has persisted. Regardless of whether you are trying to prove or disprove the existence of a prescriptive easement, copious records are crucial.

Mar 21, 2013 Arrow1 Down Reply

Please comment on this article with regard to Bill Toles landscaping on our property. I think the five years is up.

Also, it looks like our new neighbor has rented his house and our parcel portion is his backyard. He did ask me if I wanted him to partition. our portion off.

M

Dec 26, 2013 Arrow1 Down Reply
fred

i these cases does the neighbor have to prove they own the land to get a case, or can they just state that they do and force you to get the surveys and prove you have the right? In my case the platt is terrible and every person has built over lines and placed things on another property, but one person wants this to stop and has started to harass daily. The person is one of the biggest breakers of crossing lines too.

Feb 06, 2014 Arrow1 Down Reply
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Feb 15, 2014 Arrow1 Down Reply
Katy

I like it/ Good!

Mar 24, 2014 Arrow1 Down Reply
Richard

Hello:

Interesting article, and thanks for allowing comments ...

I have a situation where our 2nd home property is landlocked from the public road ; our property and the one we drive across to access it were of common ownership until 1918. We have owned it for 20 years and inherited copies of correspondence about use of the road in this way over many decades, and the other property owner (a large corporation) has never questioned or commented on our access driving across the property. But there is no recorded easement or court recognition.

Now I am applying for financing and the bank will not approve the loan because there is no easement recorded.

How to proceed? Ask the other owner for an easement, or just file a court case and get a judge to recognize it? I have no reason to expect they would object or otherwise create animosity between us and the corporate property owner, but I want to proceed carefully.

Thanks.

May 29, 2014 Arrow1 Down Reply
Rick M

I was granted permission 6 years ago, from my backyard neighbor to construct a deck on the back of his property. The steps leading to the deck on on my property but the 15 x 15 foot deck is mostly on his. The owner of the property gave me a verbal "OK" and said if he ever moved, he would sell me that portion of the land. The owner would also come down and use the deck with us when he saw us out. He was very open to the whole idea. But, owner up and died 1.5 years ago.
The new owner of the property has been very cordial about the deck, but recently decided we should tear it down, since it is on his property. He notified me in writing, so this is "open and notorious" usage. I believe we meet all 4 elements to a prescriptive easement. Would this be worth pursueing? I've offered to buy the land from him, as it will cost me minimally $5K to tear down and rebuild.
I'ld love to hear your thoughts.
Thanks,
Rick

May 30, 2014 Arrow1 Down Reply
White

@Rick M: Sounds like the other owner agrees to your usage before, so it is not adverse.

Jun 02, 2014 Arrow1 Down Reply
Rick M

@White: The first owner did give me permission, so that wouldn't be adverse. The new owner is now adverse to it after owning the property for 1.5 years. To meet the criteria for prescriptive easement, does this need to be adverse for 5 years, or only adverse now?
I believe I meet the other 3 points:
1) The use of land must be open and notorious;
2) Continue and be uninterrupted for a period of at least five (5) years (occasional use could establish the prescriptive use right for the same frequency, e.g., on weekends);
3)Subject to a claim of right (i.e., not consented to).
Thanks for your comments.

Jun 02, 2014 Arrow1 Down Reply
White

I am not really a laywer, so please check with your lawyer. But since the other owner agrees to your usage before, your previous usage is not notorious too. That 5 year should start when he no longer agrees with your usage.

Jun 05, 2014 Arrow1 Down Reply
Mike

My in-laws have lived in their home since 1958 and as long as they lived there they used a side entrance to their front steps which required them to walk on the neighbors driveway. There is only 3 feet between the property line and the front porch which makes access to the backyard very tight. The neighbor now wants to build a new fence and extend it to the front of the property 5 feet from the sidewalk. This will certainly inhibit the ingress and egress to my in-laws property including the backyard.

What recourse do my in-laws have and do you have any suggestions?

Jun 15, 2014 Arrow1 Down Reply
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Jun 24, 2014 Arrow1 Down Reply
TYLER WHITE

During some landscaping in the front yard we uncovered a large drain pipe running 5 feet off the front of my house. I filed a claim with the Title company since the city said it was in the correct spot the title company said it was not. The tile company had a survey performed that stated it was in fact in the wrong spot and denied my claim. After the City had their lawyers review they have determined that although the existing 24-inch storm pipe is not located within the 5’ PUE as indicated on the survey map, the storm pipe has prescriptive easement through the property. Therefore, they cannot relocate the existing storm pipe.

Do i have any grounds to stand on to fight the city or title company?

Aug 29, 2014 Arrow1 Down Reply
Jeanie De Tomaso

Thanks so much for this blog! I inherited a property that I just had surveyed in July 2014. I discovered that my side yard property line goes two feet into the neighbors yard. Which for many years has been used as a dirt driveway. His cars are parked directly under my bedroom windows. I followed all the rules of building a fence from the city planning Dept. But now the neighbors are claiming a lawyer told them they can sue me for prescriptive easement.
From what I'm reading since I just discovered the property line I'm wondering if I should go ahead and build the fence. I'm tired of exhaust fumes and noise when in bed! Thank you !

Sep 23, 2014 Arrow1 Down Reply
Ross Smith

Are there such a thing as prescriptive (or other) easements in commercial leases? A friend of mine has been using space in a commercial building for years without a lease and without paying rent. Now, the tenant is objecting to it after the fact. It seems like my friend may have some type of easement by virtue of his continuous occupancy for multiple years. Thoughts?

Sep 23, 2014 Arrow1 Down Reply
john

Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.
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Sep 24, 2014 Arrow1 Down Reply
John

How do I go about applying for an easement? Can I do it without a lawyer? Many lawyers are not familiar with the process. I would like to do it myself if possible.

Oct 15, 2014 Arrow1 Down Reply
Leroy

I recently bought a home in between two other homes. When one buys a home, it is thought at site value that all the land you see in between the two homes that you purchased is yours or from fence to fence. My home currently does not have a fence and I would like to put one up. I come to find out that my neighbor to the east says that he built his fence 5 feet into his property (for reasons unknown to me) about 12 years ago. The fence he built has been there for 12 years! Now that I want to build my fence at the very back of the property line and attach to his, he says that I cannot because he says he owns the land which would make my house 3 feet from the property line instead of the 5 to 7 feet that it appears to be now or to his fence. Does this meet the 5 year adverse requirement from the old owner or does it start when I purchase the home? I would not have purchased this home if I would have known this. Your help is much appreciated.

Oct 21, 2014 Arrow1 Down Reply
Rich Ravin

We have been using a drainage easement as a path to a paved trail for over 10 years. The property was sold and the new homeowner just fenced the path and now claims that he can close it. I would like to know if this would qualify as a Prescriptive Easement claim.

Oct 23, 2014 Arrow1 Down Reply
bill slack

i have a mining claim and the road has been used since the 1800s. the land owner is now growing dope so he put up a gate and will not let me to my claims.any help thanks bill

Nov 17, 2014 Arrow1 Down Reply
Bryon

We have rented for almost 12 yrs. Our house is where two roads meet. they are not county roads. We had permission from the father to use the road and we have for almost 12 years. He passed about 5yrs ago and his daughter now is telling the people we rent from that we do not have access because it is a private road. She has never told us to not use it. She claims that our landlady does not have a rightaway to use the road. she says that everytime we use the road that it puts the landlady at risk of a lawsuit. The road has been used for years now by UPS and other people who live in the area. We are rural.We do not want to be trouble and the reall issue is wear and tear on the road as far as she is concerned. I think we have the right to use it because of prescriptive easement. Thanks for the input.

Apr 08, 2015 Arrow1 Down Reply
John Rosas

I want to perfect my open and notorious prescriptive easement. I have been using this access for twelve years. Are you able to assist? Thank you so much in advance. John Rosas, 760-715-8059.

Apr 19, 2015 Arrow1 Down Reply
Vincent

Does a Presciptive Easement automatically transfer to the new owner when the Dominent Tenament is sold?

Jul 09, 2015 Arrow1 Down Reply
Vivian

Once upon a time was a land in the city and the owners divided to 2 same size lots. The A lot allowed the B to access by easement. The A lot gained access from the main street and the B was located behind the A with the easement only access.
One of the new owner for the A, changed the easement location to the other side of the lot, with a same function etc and the B still used to access to his property, The A property owner also built fence around his property, not included the easement. The easement looks like a driveway now to the B property.
The B owner used the current located easement for access for more than 10 years, paved, maintained, water piped etc installed the gate to the street front and sold the property. Middle of the sale we find out the A property owner sued the previous B owner for the easement and got the title and the deed, we got only ingress and engress to the B now what is our property now. His A property size doesn't even included the easement size (still not), but now his ownership is recorded to the county. I checked and his original sale documents doesn't included the easement either. He is not even using or maintaining the easement. He was claiming the 'old" A property when the large divided had easement on the other side and NOW he is claiming back ours from the other side. We are the dominant property with the only access with easement, we using daily, maintaining and the previous owners did a same. Can he do this? What we can do here? Any advice?
Please let me know.

Jul 15, 2015 Arrow1 Down Reply

@bill slack: Sounds like a "RS2477 Road" may be the solution.

Ball v. Stephens, 68 Cal. App. 2d 843, 158 P.2d 207 (Ct. App. 1945).

Oct 27, 2015 Arrow1 Down Reply
bill whitehead

I'm a California Realtor. Does a Prescriptive Easement carry with the land or do the easement rights disappear when someone buys the property?
Thanks

Feb 29, 2016 Arrow1 Down Reply
Lynda samarin

I have planted a vineyard, 45 acres, partly on union pacific rr easement. They have not said anything for 30 years, but now want me to lease the approx 1.86 acres fofor $2000 annual. Might i have any prescriptive easement rights? Thanks. Lynda







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