Legal Question in Real Estate Law in California

Re: Perscriptive Easement Created?

In the first place, the parking operator may be acquiring more than a mere easement by prescription. Under the circumstances, it is possible that out-and-out adverse possession is under way and the user may be acquiring the fee, not just an easement! Non-payment of taxes would probably prevent acquisition of a fee interest, however.

Non-payment of taxes is not usually an issue in creation of an easement by prescription, because easements are not usually assessed and taxed separately from the fee. There are exceptions.

The really key element here is the lease. If the lease didn't expire more than five years ago (either because it had a longer term or because it was month-to-month and wasn't terminated), then the parking operator's possession is permissive for at least some of the five-year prescription or adverse possession period, and an action for recovery of the property can still be maintained.

In the circumstances, I think it is very important for the property owner to commence an action at once, either to collect back rent, for unlawful detainer under the lease, or ejectment, or maybe several of these and other causes of action.