Legal Question in Real Estate Law in California
I live on a property with an easement. The easement is a slope, which is essentially the bulk of my backyard. When the house was built, twenty years ago, the first owner put a fence around the easement, with permission from the HOA board. Unfortunately, that permission notice has been lost, as the property management company that had it went out of business and destroyed the records. Five years ago, my wife and I purchased the house. The easement was badly ignored, not maintained at all, and I started to maintain and plant California natives on it. We now have, to put it mildly, an insane group of people on our HOA board (driven by one very controlling retired lady and her husband). They are threatening to tear down my twenty-year-old fence because I did not receive permission to put it there. Their reasoning? It is preventing them access from doing "landscaping" (which was never done in the past, and now, I've made the slope more fire safe, greener, easier to maintain than it ever was in its entire existence, I believe). My question: I live in California. I pay property taxes on the easement. It has been fenced for twenty years and ignored by previous HOA boards and owners. It is inside my property line. Do I now own it under California�s law of adversarial possession?
2 Answers from Attorneys
First of all, no one owns an easement on their own property. The proper definition of an easement is not an area, but a right. It is the right to go onto the land of another and do something that would otherwise be a trespass. So if the easement is on your property, it is a right that belongs to someone else. You don't provide any information about the easement, such as who owns it or what it is for. My gut feeling is that the easement is a nonissue and a red herring to divert attention from the problem.
The problem here is whether or not you had the fence properly installed in accordance with the CC&R's. The fact that the fence encompasses the easement has no bearing on this issue. An attorney would have to review your CC&R's, and paperwork submitted for approval.
Finally, because the easement is on your property, you do not adversely possess your own property. You already own your own property.
Roach is technically right, but really wrong in his analysis. Using the technical language of easements, he is right that you cannot adversely possess an easement on your own land. What a person can do, however, is prescriptively extinguish an easement, similarly to establishing an easement by prescription. He is also technically right that an easement is a right, not an area. However, easements are almost always, but not absolutely always, limited to exercising the granted rights within a certain area of the servient property, and are therefore described in metes and bounds just like any other area of property. An easement for a driveway for example, does not grant the right to drive over any and all of the servient property, only the right to drive across a certain defined portion of the property. If the owner of the servient property then fences off that area and the owner of the easement does nothing about it, the easement may be extinguished. The catch in your particular case is that your predecessor was granted permission to fence the area. Where the owner of the easement right consents to interference with the easement while reserving the rights under the easement, the easement cannot be extinguished by prescription or adverse possession. This is because the "hostile" or "adverse" element of the claim is not met when consent is given.
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