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What Is a Prescriptive Easement in California?

On behalf of , P.C. posted in Real Estate on Thursday, February 10, 2022.

Owners of adjacent or nearby properties often get into disputes with one another over claims of a prescriptive easement. In these claims, one property owner alleges that they have the right to use another’s property, even against the subject property owner’s wishes, based on prior use of the subject property. As a property owner in California, it’s important to understand prescriptive easements and how they may affect your property rights.

What Is a Prescriptive Easement?

Generally, an easement is a certain right to use another party’s property without owning the respective property. A prescriptive easement is a specific type of easement. However, a prescriptive easement arises when the party that obtains the easement does so by using the easement for a certain period without the subject property owner’s consent.

A prescriptive easement may involve something simple like the right to cross someone else’s property through a certain path or the right to park on somebody’s property.

Prescriptive easement rights may be obtained by proving four elements:

  • The use of the property is open and notorious. This means that the party seeking a prescriptive easement cannot use another’s property in such a way that is not hidden from the property owner.
  • The use must be continuous and uninterrupted for a period of at least five years. Use may be considered continuous and uninterrupted if it occurs with some period of regularity, such as during every weekend. However, the prescriptive easement will be limited according to the use frequency during the statutory five-year period.
  • The use must be adverse to the rights of the property owner. Entering the property of another usually is considered sufficiently adverse to the owner’s rights.
  • The property owner must not have consented to the adverse use. If the property owner consents to use of their property, either expressly or through their behavior towards the use, that use may not be considered adverse. The property owner retains the right to revoke that consent at any time.

How to Assert Prescriptive Rights

To assert prescriptive easement rights, you will typically need to file a lawsuit against the owner of the subject property. However, you might also assert a prescriptive easement in defense of a lawsuit filed by the property owner to get you to cease your use of their property. Whether you are claiming prescriptive easement rights as a plaintiff or a defendant in a lawsuit, you will need to prove the four elements of prescriptive easement by clear and convincing evidence.

How to Dispute Prescriptive Rights

To dispute a claim of a prescriptive easement on your property, you can challenge any of the four elements of a prescriptive easement claim. Evidence such as videos, photographs, and witness testimony can be used to show, for example, that the person claiming a prescriptive easement did not have continuous and uninterrupted use of your property (such as when they failed to use your property for a period of several months or more). You may also defend against a prescriptive easement claim by proving that the other party’s use of your property was not open and notorious or that you consented to the use.

How a Lawyer Could Help

If you are seeking to assert a prescriptive easement or to challenge a prescriptive easement on your property, a real estate attorney can help you by:

  • Investigating your case’s underlying facts and circumstances to recover and review all evidence regarding the alleged adverse use of the subject property
  • Going over your legal rights and options

If you have more questions about prescriptive easements in California, contact Winston Strauss Law Group, P.C. today for a consultation. Our knowledgeable real estate attorneys are here to discuss your legal rights and options and how we can help your case.

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