Legal Question in Real Estate Law in California

Re: When is an easement created?

You are speaking of what is known as a prescriptive easement. The law of easements is complicated, but in a nutshell, if your neighbor continues to traverse across your property, along the same or similar path, against your wishes, in an open way, for a period of at least five years, he may be entitled to an easement by prescription.

The easiest and surest way to stop such a result is to lock the gate and put up a sign that indicates "no trespassing". This is generally sufficient to place others on notice that any use of your property is without your permission.

If the fence itself is on your property, you need to take steps to have it removed; otherwise, it too can create a prescriptive easement. (But this is a little trickier, for a variety of reasons). At any rate, if the fence is on your property, ask your neighbor in writing to remove it. Give him a reasonable time to do it, such as 20 or 30 days. If he doesn't, you sue to remove the trespass on your property.

For additional information or help, seek out the advice of a competent real estate transactional attorney or litigator familiar with title and boundary issues. We are litigators with extensive experience with easement creation and defense. If you would like to discuss the particulars of your matter, feel free to call or email.

Good luck.

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Re: When is an easement created?

The way to prevent a prescriptive easement is to remove the element of hostility, not enhance it, as posting signs would do. One of the elements of adverse possession or prescription is hostility, which has a special meaning here - it means, for practical purposes, 'against interest' or 'without right.' You can totally prevent prescription by giving the neighbor a license to enter and short-cut across your property. A letter saying 'This is fine with me, I hereby grant you and your kids the right to short-cut across my property, but it's revocable' would do the trick.

Posting your property with 'no trespassing' signs will, however, be helpful if you want to take all lawful steps to exclude these neighbors, focusing on that issue instead of the prescription issue. Trespassing on property posted according to Penal Code section 602(l) is now a misdemeanor.

The time for acquiring rights by prescription is five years. Technically, interrupting the use, as by putting your lock on the neighbor's gate, re-sets the clock back to zero, but locking it to interrupt the trespass for a significantly longer time - maybe a couple months - would be more persuasive if the matter went to trial.

Avoid tampering with any part of the fence that is on the neighbor's property.

As a final suggestion, consider getting a current survey if there is any dispute or reasonable doubt about the location of the boundary.

Re: When is an easement created?

A prescriptive easement, which may include a pathway, arises if someone uses part of your property in an open, not secret, notorious, clearly observable, hostile, without the landowner's consent and continuous without interruption for 5 years in California.

I would recommend that you write a letter to the neighbor stating that your property is private property and that either (1) your neighbor cannot enter your property without specific authorization in each case, or (2) if you do not want the neighbor to ever use your property, that your neighbor cannot enter your property in any event. If the last option is your intent, then posting a "No Trespassing" sign within sight of the gate is also recommended.