Legal Question in Real Estate Law in California

Re: Prescriptive easement conditions

Use must be open and notorious. While your facts seem to show you can claim this, need to speak with you to discuss all info. 5 year use required if all other facts ok.

Re: Prescriptive easement conditions

I think you probably have an easement and he is out of luck. You should contact me. I deal with real estate and I have represented clients in matters that are very similar.

Re: Prescriptive easement conditions

I must respectfully differ with Mr. Brainard regarding your chances for success. While you appear to meet the prerequisites for a prescriptive easement set forth in Code of Civil Procedure section 318, 321 etc. and Civil Code section 1007, there is a trend in California to deny prescriptive easements in the suburban fence mis-location fact pattern (such as yours).

If you have access to a law library, take a look at these cases: Silacci v. Abramson (1996) 45 Cal.App.4th 558; Mehdizadeh v. Mincer (1996) 46 Cal.App. 4th 1296; and Harrison v. Welch (2004) 116 Cal.App.4th 1084.

The courts seem to be taking the position that extending one's backyard by virtue of a misplaced fence is too harsh on the rights of the neighbor losing turf and of too little necessity or benefit to the neighbor gaining ground, in that (unlike, say, an easement to use an access road) the result pretty much resembles a transfer of the entire fee interest rather than mere establishment of a non-exclusive right to co-use.

I'd say you meet the hostile test because you and your precursors in interest made your use of the land without actual permission for more than five years.

The claim of right is a prerequisite to a prescriptive easement, but courts can find such a claim by either subjective evidence (you in good faith thought you had the right) or by an objective test (it looked to others in the community that you thought you had the right to use that land). I think you do better under the objective test, since you weren't being sneaky about using the land. Of course, if you thought the prescriptive easement had been acquired 30 years ago, you also pass the subjective test.

I can't say your chances of winning are dismal, or even somewhat remote, but in the light of these recent cases (which you should read) I think it's far from a slam dunk. You can't even assert easement by estoppel ("equitable" easement) because you were aware of the true boundary at the time of your purchase.