What is An Easement By Prescription in California?

Updated on December 19, 2023

Easement by Prescription ‘or’ Prescriptive Easement

Easement by prescription is a type of easement that is created when a person uses another person’s property for a specific period of time without the owner’s permission. This type of easement is also known as a “prescriptive easement” or a “presumed easement.”

In order for an easement by prescription to be established, the person using the property must do so openly and continuously for a period of time that is set by the state where the property is located.

This period of time is often called the “statutory period.” Once the statutory period has passed, the person using the property can claim a right to continue using the property, even if the owner does not agree.

Once the statutory period has passed, the easement is considered to be acquired by prescription, and the owner of the land cannot thereafter interfere with the right to use the land for the purpose for which the easement was acquired.

How To Create Prescriptive Easement?

A prescriptive easement can be created by:

1. Continuously using the property for 5 years;
2. In a manner that is open, notorious, and clearly visible to the owner of the land; and
3. Hostile and adverse to the owner.

Easement by Prescription without Express Permission

In other words, someone who has no ownership interest in your property (a trespasser), can obtain an easement by prescription, aka without your express permission, if they openly use your land without your permission for a period of 5 years without interruption.

So for example, if your neighbor creates a path across your property to the woods where he hunts, and he uses the path for 5 years without any objection by you, your neighbor can obtain a prescriptive easement to use that path. This is obviously a somewhat simplified explanation but this is the general principal.

To be clear, your neighbor, even with a prescriptive easement does not own the path – he does not own your property. But he does have the right to use your land to get to the woods.

How Adverse Possession is Differ from Prescriptive Easement?

You might be thinking this sounds a lot like adverse possession, and it is similar. Indeed, there are similar requirements. But, adverse possession establishes fee title to the real property occupied, whereas a prescription only creates an easement in favor of use.

So an adverse possessor receives the benefits of a fee title owner, including the right to exclusive possession of the property. By contrast, a prescriptive easement only gives the easement holder a limited right to use the property of another and only in the manner used during the prescriptive 5 year period.

Regardless, as a property owner, allowing trespassers to obtain interests in your property by adverse possession or prescription is not a desirable outcome. Be vigilant and aware of what is occurring on your property, and you should not have any problems.

If you’re looking for an easement dispute attorney, Schorr Law has top rated real estate attorneys in California. If you have any questions regarding your potential prescriptive easement matter, please feel free to contact Schorr Law, APC at (310) 954-1877, or info@schorr-law.com. You can also send us a message by using our contact form.

Key Takeaways

1. Easement By prescription Definition: An easement by prescription is created when a person uses another person’s property without permission for a specific period, known as the “statutory period.” This is also referred to as a “prescriptive easement” or “presumed easement.”
2. Legal Requirements: For an easement by prescription to be established, the use of the property must be open, continuous, and for a period set by the state where the property is located.
3. Statutory Period: Once the statutory period has passed, the person using the property can claim a right to continue using it, even against the owner’s wishes.
4. Creation Criteria: A prescriptive easement can be created by using the property continuously for 5 years in a manner that is open, notorious, and clearly visible to the landowner, and is hostile and adverse to the owner.
5. Difference from Adverse Possession: Unlike adverse possession, which grants fee title to the property, a prescriptive easement only grants a limited right to use the property in a specific manner.
6. Property Owner’s Vigilance: Property owners should be aware of what is happening on their land to prevent unwanted prescriptive easements.