Legal Question in Real Estate Law in California

Re: Public Easement

Generally, land owned by public entities, such as the state or the county, are imune from adverse possession.

Re: Public Easement

I think your ZIP is Walnut Creek, and although I practice in Santa Rosa, I am informally advising a friend who is an HOA board member in WC (not yours - different issues).

Real property owned by the state or its subdivisions cannot be taken by a private party through prescription (which is the proper term for 'adverse possession' in the easement context). While a public easement can be abandoned, mere non-use doesn't usually cause abandonment. This is a common mis-conception. An easement is generally abandoned by affirmative conduct of the easement holder manifesting its intention to relinquish the easement.

This doesn't fully address your apparent issue. As I interpret your request, the developer needs to use the easement to provide street access to the property he seeks to subdivide and develop. You are looking for a way to deny him the use of the easement.

The first issue is one of standing. Your HOA may not have standing to go into court and challenge the use of the easement UNLESS the easement is over land controlled by your HOA or by an owner who will act as plaintiff. If the easement is entirely or partly on HOA property, no problem.

The next question or issue is the grant of easement itself. An attorney reviewing your possible case would want to see what was contemplated when the easement was granted. There is a concept called 'over-burden' which basically says if the easement was granted for 10 cars a day, 100 might be OK but for sure you can't put 1000 over it, or you may lose it.

The next question would be whether the grant of easement was fully effective, or can be challenged on technical grounds.

Whether the easement was accepted is another issue. I once researched this issue but can't recall exactly what I found, but I'm left with the impression that if the grantee of the easement (the county or city, for example) has not acted to 'accept' or 'receive' the easement, it may not be fully effective.

So, you have a slim chance of using the easement issue to slow, modify or stop the subdivision, but not necessarily no chance at all.