Obtaining a Prescriptive Easement In California

Updated on September 30, 2024

As we discussed in our previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement by prescription and how this works in California.

Prescriptive Easements and Obtaining a Prescriptive Easement

A prescriptive easement is a legal right to use someone else’s land for a specific purpose, acquired over time through continuous and open use without the owner’s permission. Unlike traditional easements, which are typically established through a written agreement, prescriptive easements arise from long-term use that meets certain legal criteria. In other words, historic use for a period of 5 years or more is what can aid in establishing a prescriptive easement. Understanding how to obtain, prove, or fight a prescriptive easement is crucial for property owners and those who might benefit from or be burdened by such easements.

Elements of a Prescriptive Easement

To establish a prescriptive easement, several key elements must be met. First, the use of the property must be “open and notorious,” meaning it is visible and apparent, providing the property owner with the opportunity to take notice. Second, the use must be “hostile” or without the permission of the property owner. This does not imply aggression but rather that the use is without the owner’s consent. Third, the use must be “continuous and uninterrupted” for a statutory period, which varies by state but is typically between five and twenty years. Lastly, the use must be “exclusive,” meaning the person claiming the easement must be using the property in a manner distinct from the general public.

How to Prove a Prescriptive Easement

Proving a prescriptive easement involves demonstrating that all the required elements have been met. The claimant must provide evidence that their use of the property has been open, notorious, hostile, continuous, and exclusive for the required period. This evidence might include witness testimony, photographs, or documents showing long-term use of the property. Additionally, the claimant may need to demonstrate that the property owner was aware, or should have been aware, of the use and did not take legal action to stop it. Courts will closely examine the evidence to determine whether the claimant’s use meets the legal standard for a prescriptive easement.

Interestingly, a failure to object to use or use based on the mistaken belief that the disputed property was one’s own, suggests a lack of permission.  

How to Fight a Prescriptive Easement

Property owners who wish to prevent a prescriptive easement from being established can take several actions. The most effective way is to challenge the claim by proving that one or more of the elements for a prescriptive easement have not been met. For instance, the owner might provide evidence that the use was not continuous or was with permission, negating the hostile element. Another strategy is to interrupt the use before it meets the statutory period, either by physically blocking access or by granting explicit permission, which undermines the “hostile” requirement. Property owners can also post signs or send written notices to the claimant, stating that the use is permissive, which can prevent a prescriptive easement from being established.

Benefits and Drawbacks of Prescriptive Easements

Prescriptive easements offer benefits and drawbacks to both property owners and those seeking to establish such easements. For the claimant, a prescriptive easement provides a legal right to continue using the land in a way that is important to them, such as accessing a road or a pathway. This can be especially valuable if the easement allows access to a landlocked property or provides a means of ingress and egress that is beneficial to the claimant. However, for property owners, prescriptive easements can be a burden, as they may reduce the value or usability of their property. Additionally, the process of establishing or contesting a prescriptive easement can be time-consuming and costly, involving legal disputes that may strain relationships between neighbors.

Average Costs to Get a Prescriptive Easement

Obtaining a prescriptive easement can be costly, depending on the complexity of the case and the need for legal representation. The cost is totally unpredictable because it depends on a variety of factors including whether you need to file a lawsuit, whether someone is opposing the claim, the court’s trial calendar and how hard the parties are going to fight over the easement. These costs may include attorney fees, court fees, and the expense of gathering and presenting evidence. In some cases, expert testimony might be required, further increasing the cost. Property surveys or appraisals may also be necessary to clearly define the easement’s boundaries and to demonstrate its impact on the property. Given that there is no ability to recover attorney’s fees (money spent on attorneys) in connection with obtaining a prescriptive easement, this should factor into any decision about whether to seek or oppose a prescriptive easement.

Prescriptive Easement vs. Adverse Possession

Prescriptive easements and adverse possession are similar legal concepts, but they differ in significant ways. A prescriptive easement grants the right to use another’s property for a specific purpose, while adverse possession can result in the claimant obtaining full ownership of the property. Both require the claimant to prove open, notorious, hostile, and continuous use for a statutory period. However, adverse possession typically requires that the claimant possess the property exclusively and pay property taxes during the statutory period, whereas prescriptive easements do not require the payment of property taxes and do not give an ownership interest. In essence, adverse possession allows a person to become the owner of land, whereas a prescriptive easement only grants a limited right to use the land.

How Prescriptive Easements Work in California Compared to Other States

In California, the requirements for establishing a prescriptive easement are similar to those in other states, but there are some unique aspects. For instance, in California, the statutory period for acquiring a prescriptive easement is five years, shorter than in many other states. Additionally, California law requires that the claimant prove the use was hostile. In California, an absence of permission can equal hostile. California’s relatively short statutory period can make it easier for claimants to establish a prescriptive easement.

The Importance of Consulting with a Qualified Real Estate Attorney

Given the complexity of prescriptive easements and the potential for costly legal disputes, it is essential for property owners and potential claimants to consult with a qualified real estate attorney. An experienced attorney can help navigate the legal requirements, gather necessary evidence, and develop strategies to either establish or contest a prescriptive easement. Whether you are seeking to obtain a prescriptive easement or need to protect your property rights, consulting with an attorney ensures that your interests are represented effectively.

At Schorr Law, our easement attorneys frequently take over cases where one of the parties has already made a major mistake in the negotiation or litigation process giving us an opportunity to capitalize on their mistake to our client’s advantage.  Many lawyers who do not regularly practice in this field make mistakes by quickly jumping to conclusions and making simple allegations without realizing that those very allegations often support the claims our client is making. We want to win for you so we are going to be strategic and not make the wrong tactical move.

For more information or to seek legal advice, contact Schorr Law, where our experienced real estate attorneys are ready to assist you in all matters related to California prescriptive easements and property rights. Protect your property and secure your rights with expert legal guidance. Contact our Los Angeles office today at (310) 954-1877 or fill out our contact form here.