How to Protect Your Property from A Prescriptive Easement

Santa Barbara County, with its many large parcels of real property is an area rife with potential prescriptive easement claims. A prescriptive easement is just like any other type of easement, except that the person who acquires it does so without the landowner’s consent. The process to acquire a prescriptive easement is similar to, but different from, adverse possession.

To acquire a prescriptive easement, a person must use the land of another in a way, which is “open, notorious, continuous and adverse for an uninterrupted period of five years.” Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal. 3d 564, 570. Basically, in order to obtain the easement, the person must act as if he or she already owns the easement, in an open and obvious way, for at least five years. A common example of a prescriptive easements is found in cases where an individual traverses over the property of the landowner without the owner’s permission for five years (i.e. drive across a road on the property; walk on the property; ride horses on the property; use the property to park vehicles or store items, etc…).

A prescriptive easement is an involuntary conveyance. The party obtaining it need not pay the landowner for it. Once a prescriptive easement is established, the party owning the easement may have his or her rights to it enforced by the law. Among other things, the owner of the easement may obtain an injunction to force the landowner to remove any obstructions in the easement which interfere with the easement owner’s ability to utilize the easement.

To obtain a prescriptive easement, it is essential that the use of the easement is without the permission of the landowner. If the landowner consents to the use, then no prescriptive easement is obtained. A common and relatively easy way for a landowner to protect his/her property from a prescriptive easement claim is by posting appropriate written notices on the land in accordance with Civil Code Section 1008 at the perimeter points of the property where potential trespassers may enter.
Civil Code Section 1008 provides that: No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”

The sign must be installed by the property owner. If the sign is posted by a tenant, this does not satisfy the requirements of Section 1008 and a prescriptive easement could still be created. Aaron v. Dunham (2006) 137 Cal. App. 4th 1244.

If a landowner has any suspicion that people are entering onto any portion of their land for any purpose without the property owner’s consent, posting a Section 1008 sign is essential to ensuring that a prescriptive easement is not created.

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