The Requirements to Establish a Prescriptive Easement
Actual and open:
- There must be actual use and either the use must be open so to constitute notice to the owner (a reasonable owner should notice such use) or the owner should have actual notice and knowledge.
- There must be a definite line of travel.
- Use by the owner (and./or others) will not prevent creation of a prescriptive easement.
- The use must be against the interests of the owner. Use is adverse if it would give rise to a cause of action for trespass or some other wrong.
- The use must be without the permission of the owner.
- Ineffective protest (such as a no trespass sign or a stern letter ) may backfire by establishing that the use is without the permission of the owner.
5 years of continuous use:
- Constant use is not necessary. Use that is seasonal or periodic may qualify.
- Use by user’s predecessors can be included (referred to as “tacking”). Interruption by owner prevents prescription (“assertion of domain by owner”).
- Interruption by third parties or by nature may not be sufficient. Filing of a lawsuit by the owner is sufficient (if successful, the date of interruption is the filing date).
Cannot exclude owner:
- An “exclusive prescriptive easement” would be tantamount to adverse possession, which is allowed in California only if the property taxes are paid.