Summary

What is a prescriptive easement?

Think of prescriptive easements as the acquisition of an easement by adverse possession or squatters rights.

An easement is an interest in the land of another that entitles the owner of the easement to a limited use or enjoyment of the other’s land. A prescriptive easement is an easement that is earned by regular use — it is not something that is purchased, negotiated, or granted. A prescriptive easement is simply a right to use property, the user does not gain title to the land (unlike adverse possession, discussed below).

Why can somebody get an easement without permission and without paying for it?

The historic rationale for allowing easements to be obtained in this way was that long-standing patterns of land use should be protected and a diligent user or occupant of land should be rewarded at the expense of the careless title holder.

Why is there so much confusion about the law of prescriptive easements and encroachments?

The law of prescriptive easements was created by the courts in England and the United States over hundreds of years and the resulting rules are arcane and frustrating. The archaic phrases used, such as “open & notorious” and “hostile & adverse” are as useless as they are confusing. See the chart describing the archaic terms at the end of this article.

How does a prescriptive easement get established?

There are four basic elements, as shown below:

The requirements to establish a prescriptive easement

  • Use that is actual and open
  • Use that is adverse to the owner (w/o permission)
  • Five years of continuous use
  • Must not exclude use by the owner

What is adverse possession?

Think of adverse possession as squatters rights. The elements necessary to establish ownership (legal title) through adverse possession are very similar to elements necessary to establish prescriptive easements, but there is one additional requirement. To acquire title to property in California through adverse possession, one must pay property taxes on the property. As a result, adverse possession, for all practical purposes, does not exist in California. Because property taxes would not be separately assessed against the area of a prescriptive easement, payment of property tax is not a necessary element of prescriptive easements.

Why should we care about prescriptive easements?

Significant property rights can be lost through inadvertence. The value of a property that has been burdened by an unwanted easement can be severely diminished. The possible land uses on the servient property are reduced and the easements could directly impact the ability to develop property. Such an easement would make the difficult to market and there are significant disclosure requirements and issues.

What are some examples of prescriptive easements?

Prescriptive easements often are paths of travel:

  • Homeowners who walk across a vacant commercial lot to access retail stores or mass transit
  • A property owner who has access to a public road but who drives across a private road on the neighbor’s property as a short cut to a major highway.

What are some examples of encroachments?

Encroachments are uses of property for structures and improvements and do not necessarily involve paths of travel:

  • Fences that are not on the property line
  • Landscaping that extends onto another property
  • Structures that are placed on top of a property line, extending into the other property

As discussed below, establishing an encroachment by prescription is very difficult because the intruding party cannot exclude the owner from use.

Does intention make a difference in prescriptive easement and encroachments disputes? For example, does it matter whether or not a fence a was placed in its location by mistake?

Intention is not one of the required elements of prescriptive easements and encroachments. A prescriptive easement may be established whether the use was based on a mistake, a claim of right, or an intentionally wrongful act.

Can the landowner encroached upon be excluded from the use of the land involved?

No. Recent cases have confirmed that a prescriptive easement may not be established if the use is an encroachment that effectively prevents a burdened landowner from using the land involved. California courts have reasoned that granting “exclusive prescriptive easements” would be to allow a prescriptive easement to masquerade as adverse possession. The result would be to subvert the California legislature, which has declared that adverse possession may be obtained only if the claimant pays property taxes on the involved land.

In recent cases, California courts have concluded that prescriptive easements will not be granted in situations involving “garden variety residential boundary encroachments” and “simple backyard disputes.”

The delivery truck easement:
Felgenhauer v. Soni (2004)
Delivery trucks regularly drove through a parking lot owned by a bank to service a restaurant on an adjacent. The courts held that the restaurant parcel had established a prescriptive easement and was entitled to continued use the parking lot.

The golf ball easement:
MacDonald Properties v. Bel-Air Country Club (1977)
At a country club, several poorly hit golf balls landed on the servient property each day for more than 5 years. The courts held that the country club acquired a prescriptive easement to use the servient property as a rough.

The nudist colony:
Bartholomew v. Staheli (1948)
“The easement for access to a tranquil home and farm was converted into a turbulent route to reach a hilarious nudist colony. That unauthorized change of burden on the easement was a harmful imposition on plaintiffs’ property rights.”

The subdivision:
Hill v. Allan (1968)
Under the fact of the case, the subdivision of the dominant property, allowing many additional homes, was held to be reasonably foreseeable.

The garden variety residential boundary encroachment:
Harrison v. Welch (2004)
In a case involving a shed, the court determined that an exclusive easement “will not be granted in a case . . . involving a garden variety residential boundary encroachment.”

The pipeline easement:
Jones v. Harmon (1959)
Although the water pipeline was not visible, apparent accessory installations, such as standpipes, constituted sufficiently open use and a prescriptive easement was allowed

The encroaching reservoir:
Otay Water District v. Beckwith (1991)
In a situation of “difficult and peculiar facts,” the court confirmed a prescriptive easement right for a water district to maintain a reservoir that encroached 20 feet onto an adjacent parcel. Recent cases have made it clear that this case should have been decided on a balancing of the hardships test, rather than on a prescriptive easement theory.

THE CHECKLIST: 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.

Adverse:

  • 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.

Can a prescriptive easement across government land be obtained?

No, it is not possible to obtain a prescriptive easement against land held by local, state and federal government. The courts have long held that “time does not run against the King.” See also Civil Code Section 1007.

Can the government get a prescriptive easement across private land?

While there have been few court cases in California on this question, it appears that governmental entities may acquire prescriptive easement rights over private property.

Can the public, in general, get a prescriptive easement?

While there are few California cases that address this issue, California courts appear to support the concept that public use can lead to a public prescriptive easement. Even in those situations where the general public has perfected a prescriptive right, a private individual or individuals may also acquire a private prescriptive right if the individual use, by itself, is sufficient to create that right.

Can recreational uses establish a prescriptive easement?

In general, no. A special Civil Code section acknowledges that “it is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use” and provides that such use cannot ripen into a prescriptive easement. However, this statute does not apply to land “within 1000 yards inland of the mean high tide line’ (these owners, as discussed below, may avoid prescriptive easements by posting signs pursuant to Civil Code §1008, recording notice pursuant to Civil Code§813, or entering into an agreement with a governing agency). See Civil Code §1009.

Can a prescriptive easement be perfected against a landlord?

While a prescriptive easement may be obtained against the possessory rights of a tenant, a prescriptive easement cannot be obtained against a landlord’s reversionary interest. The landlord has no possessory rights during the term of the lease, so, as a technical matter, invasive uses are not adverse to the landlord’s interest.

What is a negative easement? Can there be negative easements by prescription?

Examples of negative easements are the right to receive air and light. Another example is an easement to preserve a view. A negative easement does not permit the holder to enter or use the servient estate; it limits the right of the servient owner to utilize the servient owner’s own land. For example, if the dominant property holds a negative easement for light, the servient owner cannot make use of the servient property in a way that deprives dominant property of light. Negative easements cannot be acquired by prescription.

Who has the burden of proof?

Whether or not a prescriptive easement has been established is a question of fact. The burden of proof to establish a prescriptive easement is on the claimant.

While the courts adopt the objective standards for the establishment of prescriptive easements, there is no doubt that a sense of fairness does color the objective analysis.

Do the courts ever look at hardship in weighing the evidence?

Under certain, limited circumstances, the court will balance the relative hardships on the parties to determine whether to issue an injunction prohibiting an encroachment. A decision in favor of an encroaching use does not create or validate an easement, it just means that the court will not order the encroachment removed.

To qualify for such treatment, the encroaching landowner must have made an innocent mistake. A court will not grant equitable relief if the encroaching landowner comes to the court with “unclean hands.” In balancing of the hardships, the court asks if the landowner who is encroached upon would be irreparably harmed by the continuation of the encroachment. The court also asks whether the harm caused to the encroacher by an injunction be greatly disproportionate to the hardship caused to the owner by the continuation of the encroachment.

An example of the type of case in which a court might balance the hardships and refuse to issue an injunction prohibiting the encroachment would be a reservoir operated by a water district for a long period of time and which encroached on the land of another by 20 feet. As discussed below, the court in such a situation may order that the encroacher pay dollar damages to the burdened landowner.

What is an “equitable easement?”

Some courts that have focused on a balancing of the hardships, as discussed above, have used the term “equitable easement.” However, that term is unfortunate and a refusal to issue an injunction may allow a use to continue but it does not confirm or create a prescriptive easement:

  • Unlike a prescriptive easement, the encroachment must be innocent.
  • Unlike a prescriptive easement, if the encroachment is destroyed, the right to encroach terminates.
  • Unlike a prescriptive easement, compensation may be ordered.

Once a prescriptive easement exists, are there any limits on how it can be used?

Yes, there are significant limitations on the future use:

  • Use is limited to the actual user(s). The right of usage may pass to the user(s) successors-in-interest, as discussed below.
  • Use is limited to the historic manner and scope of use. For example, a prescriptive easement allowing access to a single ranch house cannot be expanded to include access to a 200-unit housing subdivision on that ranch land. However, the courts have allowed some variation of usage to accommodate a normal evolution in the use of the dominant estate.

What happens to a prescriptive easement when dominant property is sold?

Easements are property rights and where easements are appurtenant to a dominant property, the easements are transferable. Once the elements of a prescriptive easement are satisfied, a user may pass the prescriptive rights to a buyer of the dominant property. However, as a practical matter, prescriptive title is not marketable or insurable until it is established on the record by a judgment. While there is some case law questioning the transferability of easements in gross (easements that are not associated with a dominant property), Civil Code Section 802 provides that all easements are transferable.

What happens to a prescriptive easement when the servient property is sold?

The law is not well-settled in California, but it appears that California courts agree with the prevailing view is that a bona fide purchaser of land takes title subject to an existing prescriptive easement even if the purchaser is without notice of its presence. An issue that arises in these cases is whether the easement is sufficiently apparent to charge the purchaser with constructive or inquiry notice.

Note that an owner of property burdened by a prescriptive easement has significant disclosure obligations to a buyer.

What about title insurance?

The standard California Land Title Association (CLTA) policy insures title but excludes off-record easements, encroachments and other risks that would be disclosed by inspection and survey. American Land Title Association (ALTA) policies are available that do not have these exclusions. These policies are significantly more expensive as they normally involve professional surveys and inspections.

Do “No Trespass” signs do any good?

Posting a “No Trespass” sign, without more, may backfire. If the “No Trespass” sign is not effective in stopping the use, the posting of the sign may help establish prescriptive rights in the trespasser because the sign just documents that fact that the use is adverse (without the permission of the owner).

What about a stern warning, like a “cease & desist” letter?

Same problem here as with the “No Trespass” sign. Any ineffective protest of the uses being made of your property may backfire — a protest without actually preventing the use helps the trespasser establish that the use is adverse (and without the permission of the owner).

Is there something more effective than signs?

Ironically, a more effective tactic would be for an owner to write a letter stating that “you have permission to use my property.” There are many other strategies, as described in the tables that follow.

If a lawsuit is necessary, what type of lawsuit would be filed?

Whether the purpose of the action is to enforce or eliminate a prescriptive easement or encroachment, the most common legal cause of action is a “quiet title” action, a lawsuit that requests that the court determine the status of the title to the property. Other common forms of action in these situations are actions for trespass, ejectment, and equitable relief.

What if neighboring owners want to adjust the property lines to accommodate an encroachment?

The owners may apply to the local governmental organization in which the property is located for a lot line adjustment. While lot line adjustments can involve complex issues, minor adjustments to resolve disputes are granted often.

How can an owner effectively audit property for prescriptive easements and encroachments?

Hoge Fenton recommends an occasional review of property boundaries, selecting from a menu of possible alternatives, including:

  • Locating survey monuments
  • Walking the boundaries, looking for paths, encroachments and any indications of use.
  • Checking for signs previously posted pursuant to Civil Code Section 1008
  • Listing all users of the property and reviewing documentation of permission
  • Informal consultation with a surveyor
  • Review of a rectified aerial photograph (aerial photograph with property boundaries imposed).
  • Consultation with a professional about any questions that arise during the review.

What “preventive maintenance” can be done to reduce the chances of losing property rights to prescriptive easements and encroachments?

Before purchasing:

  • inspect the property carefully
  • identify the property boundaries
  • consider retaining a surveyor for an informal consultation or formal survey
  • consider obtaining ALTA title insurance instead of the standard CLTA policy
  • Be vigilant
  • Regularly audit the property by inspecting the boundaries and making a record of the inspection (concurrent notes and photographs). See the description of a prescriptive easement / encroachment audit in this article.
  • In some circumstances, consider recording a special notice as authorized by Civil Code Section 813.
  • Consider posting signs pursuant to Civil Code Section 1008 (and possibly recording written notice of the posting of the signs).

If a specific threat is identified before 5 years has passed, what can be done?

In this situation, the owners negotiating position is quite strong, as no legal rights have vested.

Seek the advice of an attorney

Consider:

  • Retaining a surveyor for an informal consultation or formal survey
  • Physical strategies to stop the use, such as fencing, or removal of the encroachment. Caution must be taken, as self-help is fraught with difficulties and danger and ineffective efforts may backfire (and prove adverse use)
  • Giving (and documenting) limited, revocable and non-transferable consent
  • Entering into a written agreement
  • In some circumstances, recording notice pursuant to Civil Code Section 813
  • Posting signs pursuant to Civil Code Section 1008 (and possibly recording notice of the posting of signs)
  • Mediation

The response should be active, clear and documented — ineffective protests may backfire

As a last resort, consider the filing of a lawsuit.

If a specific problem is identified and it appears that 5 years has passed, what can be done?

The negotiating leverage of the burdened landowner is quite weak, but there are strategies that can be helpful. Much depends on whether or not the prescriptive user is aware that prescriptive rights may have been perfected.

Seek the advice of an attorney.

Consider:

  •  Retaining a surveyor for an informal consultation or formal survey
  • Physical strategies to stop the use, such as fencing, or removal of the encroachment. Sometimes the user will not press the claim. Caution must be taken, as self-help is fraught with difficulties and danger and ineffective efforts may backfire (and prove adverse use).
  • Attempting to document that the use had been with consent
  • Entering into a written agreement that provides the user with enhanced rights and provides that the entire easement may be revoked by the owner after a period of time, upon transfer of title, or under certain conditions.
  • Posting signs pursuant to Civil Code Section 1008 (and possibly recording notice of posting of signs), although this may backfire and establish that the use was adverse
  • Mediation
  • In these situations, self help is particularly difficult and dangerous

The response should be active, clear and documented

As a last resort, consider the filing of a lawsuit

What if I have prescriptive rights and I want to perfect those rights?

Be aware of all the strategies that a burdened landowner may consider, as described above.

  • Seek the advice of an attorney.
  • Document the use and the lack of consent in every possible way (photographs, documents, diary entries and eye witnesses)
  • Consider physical improvement of the easement
  • The response should be active, clear and documented
  • As a last resort, consider the filing of a lawsuit

Can a property owner simply remove an encroaching structure?

Regardless of the state of the law on this subject, self help is a dangerous alternative.

If the encroachment is a structure or improvement, there appears to be no right to remove it through self-help unless it can be shown that the encroaching neighbor put it there in bad faith and with the knowledge that it encroaches. Although the law in California is not perfectly clear, it appears that the encroaching structure is the encroacher’s personal property to which he or she has a conditional right, and resorting to self help to remove the structure could subject the removing party to a claim for damages.

Can an encroaching party go onto the burdened property to remove improvements?

Civil Code section 1013.5 now provides that if the encroachment was put in place in good faith and because of a mistake of fact or law, the encroacher may remove the encroaching structure if the encroacher pays the burdened landowner all damages proximately resulting from the affixing and removing the fixture.

What about encroaching trees?

An overhanging tree branch from a neighbor’s tree is an encroachment. The burdened property owner may not cut down the tree, but the burdened owner may cut the branches back to the property line as long as there is not “unnecessary injury” to the tree. Roots from a neighbor’s tree can also constitute an encroachment and may be cut if they cause damage, but the burdened landowner may be subject to damages if he or she fails to act reasonably (the landowner would not have acted reasonably if the action taken is more severe than necessary to prevent the damage caused by the roots, and the tree is adversely affected).

Is there any type of sign that does work to prevent prescriptive easements?

Yes, Civil Code Section 1008 was added in 1965 and very directly provides that “no use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription: if the owners posts the following notice:

  • Right to pass by permission, and subject to control, of owner. Section 1008 of the California Civil Code

This notice must be posted at each entrance to the property or at intervals of not more than 200 feet along the boundary. Better practice is to post both at entrances and at 200-foot intervals. The owner should maintain records of the postings, including dates and digital photographs.

These signs are often posted on fences and imbedded into sidewalks in plazas surrounding urban buildings

Is there any document that can be recorded against the title that helps an owner prevent claims of prescriptive easements?

Civil Code Section 813 was enacted in 1963 to allow owners a way to prevent prescriptive easements without resorting to physical acts of obstruction or the filing of a lawsuit. An owner may record with the county recorder a notice substantially as follows:

  • The right of the public or any person to make any use whatsoever of the above-described land or any portion thereof (other than any use expressly allowed by written or recorded map, agreement deed or dedication) is by permission and subject to control of owner.

The problem is that this solution is for a very narrow range of situations. Civil Code Section 813 provides:

  • “After recording a notice pursuant to this section , and prior to any revocation thereof, the owner shall not prevent any public use appropriate thereto by physical obstruction, notice or otherwise.”

The bottom line is that the recordation of this type of notice is most helpful in those situations where a landowner knows that use of the servient property cannot be entirely prevented. Prime examples are properties near beaches and large tracts of unoccupied land. Such recorded notice is conclusive evidence that subsequent use by the public or by any user is permissive and with the consent of the owner. This permission may be conditioned upon reasonable restrictions on the time place and manner of the use. If the use causing the concern is by a particular person or persons, the notice must be served on the user(s) by registered mail. The recorded notice may be revoked by recording a notice of revocation.

Who has the right and/or obligation to maintain an easement?

Absent an agreement to the contrary, the normal rule is that the holder of the easement has the obligation to maintain and repair the easement. The holder of an easement has a right to enter the burdened property in order to repair and maintain the easement (this sometimes is referred to as a “secondary easement.” In one reported case, the court uphold the right of an easement holder to build a retaining wall to protect a road easement.

Once a prescriptive easement is attached, what are the obligations of the owner of the servient property?

The owner of the burdened property may not interfere with the use by the easement holder. However, the owner of the burdened property may use the easement area in any manner and for any purpose that does not unreasonably interfere with the rights of the easement holder