Legal Question in Real Estate Law in California

Re: Adverse Possession of Easement

Easements, and other interests in real property, generally involve complicated issues. There are typically no easy, quick answers. Your factual scenario is no exception.

If the "road easement" is recorded (i.e. it was created by written grant or agreement), then your conduct over the last several years is undoubtedly insufficient to nullify the effect of the recorded easement.

To obtain or quiet title to property via prescription (aka adverse possession), a much longer period of adverse use is required.

How long has the fence blocked access to the easement? Has it truly blocked use, if in fact the neighbor has the ability to pass through the fence to clear brush. (We have litigated many of these types of cases, and as a general rule, if there is a gate through with the "easement user" obtained access, that fact alone is going to defeat the other party's adverse claim.)

Is there any other way to access the property, or is via the easement the only way? If it's the only way, you will not be able to block use of the easement. Again, this involves complicated issues of land use, but a landlocked property will be permitted reasonable access via what is known as an implied easement.

In addition, assuming that the easement is valid and that it can be transferred to the "developer", then the next question is whether the developer intends to make use of the easement that overburdens it. The scope of the easement (i.e. its intended use, or its actual use over the years, depending upon how your easement was created) may call for periodic access only to clear brush; so the developer cannot all of a sudden come in and pave a road for traffic access.

These are all involved issues which cannot be fully fleshed out in such a small space. The most important thing is that if you need to engage in litigation, or if you are sued by your neighbor, you must retain competent legal counsel familiar with land use litigation. We are real estate litigators with extensive experience with real property rights, and if/when you are ready to proceed, you should feel free to contact us via email or phone.

Re: Adverse Possession of Easement

10 years for adverse possesion. It may be argued that the easement is no longer necessary as there is another access road to the property. Call me directly at 16192223504.

Re: Adverse Possession of Easement

An easement cannot be extinguished by the owner of the burdened property through adverse possession, for the simple reason that the owner already has the right of possession and his possession is never adverse.

Easements are extinguished as provided in Civil Code section 811. This section was, like much of the Civil Code, enacted in 1872, so its language is a little old-fashioned, i.e. it refers to "servitudes" "dominant tenement" and "servient tenement." These terms mean "easement" "benefitted property" and "burdened property," respectively. Your property would be the servient tenement here.

Four things causing extinguishment of easements are recognized by the statute.

The first is when the same person owns both the benefitted and the burdened property. That is said to "merge the estates" and the easement disappears at that time. This doesn't affect you.

The second is "destruction of the servient tenement." This might apply in, for example, the case of an easement to use a bridge or levee. Since land per se isn't destructible, this provision is also inapplicable.

The third is "performance of an act...by the owner of the servitude.... which is incompatible with its nature or exercise." An example of this might be where a railroad company has an easement for its tracks, and then abandons and removes the trackage. This would probably extinguish the easement, if done with intent that the abandoment be permanent. Note that it is the party benefitted by the easement who must do the incompatible act. This probably doesn't apply in your situation, either, since passive assent to building fences would (in my opinion) not amount to an "incompatible act."

The fourth means by which an easement can be extinguished in California applies only "when the servitude was acquired by enjoyment" which I take to mean "by prescription," i.e., adverse use over five years or more, and possibly otherwise...in which case, disuse by the party benefitted by the easement for five years would result in its extinguishment. This is NOT the same as you adversely possessing - it is the beneficiary's non-use and has nothing to do with possession by the owner of the servient tenement.

Methods 3 and 4 are examples of extinguishment by abandonment. The Civil Code also provides a process for clearing up abandoned easements on the public record -- see sections 887.010 through 887.090. See in particular 887.050(a) which states that an unrecorded easement that is unused for 20 years without payment of separately-assessed taxes is presumed abandoned.

I have not looked at cases interpreting Civil Code 811, so I can't elaborate on how the law may have been applied, expanded, etc. by judicial decisions.

I would add that easements can also be "extinguished" by contract between the affected parties, or, in cases where they were created for a specified term (most easements are perpetual), by the expiration of the term.

Re: Adverse Possession of Easement

I would agree with Mr. Whipple. From the facts that you have presented, your erection of the fence may be construed as interference with his easement rights. If the easement is an express easement and of record, it will pass with the title to the dominant tenement.

You should consult with an attorney knowledgeable about these matters. Mr. Whipple's analysis is solid, and you should avoid action that will subject you to a lawsuit. I once had a case where the clients engaged in "self help" and put a concrete septic tank on the easement to block access - this caused a lot of trouble.

Very truly yours,

Re: Adverse Possession of Easement

I do need to supplement or correct my answer in one major regard, i.e., adverse possession by the owner of the servient estate CAN INDEED result in extinguishment of the easement by adverse possession. My earlier theorization that it was impossible because possession by one who already had the right of possesion couldn't be "hostile" is technically correct, but overlooked the fact that, in addition to simple possession, the owner of the servient estate might do acts that were indeed legally "hostile" because they interfered with the easement owner's ability to use the easement.

So, there are California cases approving extinguishment of easements by adverse possession; in these cases, the owner of the servient estate did something quite disruptive to the easement owner's rights, such as construction of buildings and, yes, placement of fences. If, however, the easement owner were to say, "It's OK with me if you build that fence, but understand that you may have to take it down someday, if I ever decide to use my easement," then the construction of the fence is permissive and not hostile, and there is no adverse possession.

See Glatts v. Henson (1948) 31 Cal.2d 368 for a case rather fully explaining the concepts and finding that construction of buildings would, after 5 years, snuff out the easement as to the land occupied by the buildings. Then see Tract Development Services v. Kepler (1988) 199 Cal.App.3d 1374, for a case holding that construction of a fence can be, but often isn't, enough to extinguish an easement by adverse possession.

I am posting this follow-up reply because I think my previous answer, while theoretically correct, failed to answer the question meaningfully, and could mislead you.

My opinion now is that the first (1970s) fence is probably inadequate to start adverse possession, but the April, 2002 fence more likely than not would be, in which case your five year requirement would terminate the easement in April, 2007, and you could begin a quiet title action then; however, your conversations with the easement owner may arguably amount to a tacit agreement whereby the element of hostility is removed. Also, judges are reluctant to create landlocked parcels and if extinction of the easement would landlock this parcel, the court will look for a way to deny your quiet title.