Legal Question in Real Estate Law in California

Re: Prescriptive Easement

A Prescriptive easment is a right to use land that arose from use that was open, notorious, and for a definite period of time.

Joel Selik

www.4thelaw.com

Attorney and CA Real Estate Broker

800-894-2889

Re: Prescriptive Easement

First, let's start out with what an easement is. Most frequently, an easement is the right, held by the owner of land parcel A, to make certain uses of land parcel B. Examples are that the owner of A can use an access road running over B's farm. Most electric utility lines and many railroads operate over easements. Easements are non-exclusive and almost always run with the land, meaning that sale of the benefitted parcel vests the easement in its new owner.

Easements can be created in several ways, the most common being by express language in a written, recorded easement agreement in which X grants the easement to Y, or X sells land to Y but reserves an easement for X's own use over the land sold ('easement by grant' and 'easement by reservation').

An easement can also arise from 'prescription,' which is closely analogous to obtaining title to land by adverse possession. The result of 'prescription' differs, however, in that what passes to the party acquiring the easement is only an easement, and not ownership (as with adverse possession).

The usual process is something like this. X drives across a corner of Y's farm to get from the public highway to X's farm. He does this for five or more years, perhaps because his own driveway has a washed-out culvert, or because cutting across Y's property is a short-cut, or whatever. Whether Y notices what's going on is not important. It is essential, however, that Y does not ever give X explicit permission.

After five years of such use (in California), X will have acquired a prescriptive easement, and Y will no longer have the power to put in a locked gate or otherwise deny X the continued use of the strip of land as a driveway. However, X has not acquired title, and Y can also use the strip of land for purposes compatible with the easement.

If X wants official recognition of his easement, he must bring a suit against Y (the owner) to 'remove cloud' and have the easement judicially recognized. The judgment can then be recorded.

In order to prove his prescriptive right to an easement, X must show his five-year use was adverse, open and notorious, and continuous and uninterrupted. The terms have somewhat technical meanings in this context.

Once a prescriptive easement has been created, the remedy of the affected owner (to remove the easement) is also to sue the claimant to remove cloud on title, and to disprove the easement by showing that not all of the required elements existed. For example, if the owner can show that permission was granted, the claimant's case can be defeated. An alternative is to buy out the claimant. Any such remedy should involve the assistance of an attorney.