Updated on January 11, 2023
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 in California. This is an easement right granted at law when the dominant estate accesses the property of the servient estate for a defined period of time for a specific purpose, without consent.
To establish a prescriptive easement, a claimant must prove use of the property, for the statutory period of five years, which has been:
To fulfill these elements, the individual who seeks to establish an easement by prescription must prove that they have been using the land in question openly, notoriously, and continuously for the statutory period, without the owner’s permission and with the intent to claim a right to that use. It’s also worth noting that if the land owner try to prevent the use, it would break the continuity of the use, and the prescriptive period would start again.
Generally, the claimant has the burden of proof of proving each of the elements necessary to establish that the easement has been created by prescription. (Code Civ. Proc. § 321.) (Main Street Plaza v. Cartwright & Main (2011) 194 CaL.App.4th 1044, 1054.)
Whether the easement satisfies the above requirements is considered a question of fact. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 571.) Accordingly, a claimant is usually entitled to a jury trial on these factual issues. (Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 125-126.)
In addition to the above requirements, the claimant also must show that their prescriptive easement is not exclusive. What this means is that a claimant generally cannot establish a easement through prescription for a physical encroachment. (See Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296) This is because an easement is meant to allow someone to make specific use of someone else’s property, and not to obtain fee title. (Id.) Otherwise, a claimant could do an end run around the tax requirement for obtaining fee title via adverse possession. (Id.) Accordingly, prescriptive easements have traditionally been granted for rights of way and ingress and egress purposes.
However, as we will discuss in future posts, you may still be able to obtain an easement for a physical encroachment if you can establish that you are entitled to an easement based on the equitable principles.
It’s important to note that creating an easement by prescription is a legal process and it’s advisable to consult with a real estate attorney for legal guidance and for understanding the specific laws and requirements in the jurisdiction where the property is located.
Are you looking for a real estate lawyer in Los Angeles? Schorr Law has the top rated easement attorneys servicing California. Whether your easement issues involve right of ways or physical encroachments, we have experience in analyzing easement issues related to all types of easements.