This article was posted on Friday, Dec 01, 2017

Hello everybody.  Over the decades I have authored several articles for the AOA explaining what steps an apartment owner should take to avoid an adjoining neighbor (or the neighbor’s tenants) from acquiring a driveway easement on the owner’s property.  I have previously explained how such easements (known as “prescriptive easements”) are acquired, and have discussed the defenses available to an owner to defeat a neighbor’s claims.

One instructive real life example may be seen in a lawsuit which was recently brought to trial before the Los Angeles Superior Court against one of my clients, who owned the driveway, by its next door neighbor, who drove on the driveway for nearly 20 years.

After listening to all of the witnesses’ testimony, considering a multitude of photographs of the driveway, and even conducting a personal site inspection of the properties (they are located in Los Angeles, California), the judge ruled in my client’s favor, determining that despite the years of the neighbor’s use of the driveway, the neighbor did not acquire an easement on the driveway.

What makes this case particularly important is that my client was (and is) one of the largest non-profit, no-kill animal rescue organizations in Southern California.  It was staffed primarily by volunteers and existed solely on donations.  Its facility housed hundreds of dogs and cats of all sizes, ages and breeds.

Had the neighbor acquired the easement, the dogs would have lost their new exercise area (i.e., the former driveway) as the facility was converting its driveway to an exercise area when the neighbor filed suit.  Perish the thought, but if the neighbor had won the litigation, the canines would not have had any area to roam or play.

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While my client’s kennel was not an apartment building (which is the obvious focus of the AOA), the law which the court applied to the case is exactly the same law which would be applied to an apartment building where a neighbor or his tenants drive on a next door owner’s driveway.  Hence the kennel case is not only relevant from an animal lover’s perspective, it is also important to AOA members as owners of multi-family dwellings who have driveways leading to the parking areas at the rear of their buildings.

Easement Fundamentals

Before proceeding with a discussion of the judge’s findings in the canine driveway litigation, let me review the legal fundamentals of easements, and in particular, prescriptive easements.

In the context of apartment buildings, an easement is a legal right of a neighbor or his tenants to use the next door owner’s property in common with the owner or the owner’s tenants over a long or indefinite period of time.  While an easement creates a property right across an owner’s property, it does not transfer title to the holder of the easement, that is, to the neighbor who uses the easement.  Title remains with the owner of the property.  The neighbor simply has the right to access the owner’s property even against any protests the owner may lodge.

Second only to easements to utility companies to place and maintain utility poles and conduits, the most common easements are those for ingress and egress, such as driveway usage.  A driveway easement gives a person the right to drive on an owner’s driveway, generally to reach the user’s property.

“Flag” lots are an example where driveway easements are often found.  A flag lot is one where the owner has a long driveway starting at the public street, which proceeds rearward to the owner’s residential structure.  Typically, a driveway for a flag lot serves one or more other lots along the way, usually on one side or the other of the driveway.  In those instances, all of the abutting neighbors have the right to drive on the driveway of the flag lot even though they do not own any portion of it.

While most easements (including driveway easements) are created by a written instrument, such as a grant deed, easements may also be acquired by a neighbor or the neighbor’s tenants by hostile use over the statutory period of five years.  This type of easement is known as a prescriptive easement, and is established if the neighbor is able to satisfy the following four elements:

  1. Open and notorious use.  This means that the use by the neighbor or his tenants is visible and not concealed from the owner.
  1. Hostile, adverse and under a claim of right.  This means that the neighbor or his tenants used the owner’s property adversely as though it was their own and without the owner’s permission.
  1. Continuous and uninterrupted.  This means that the use occurred on a frequent and ongoing basis.
  1. 5 years or more of usage. This means that the adverse use of the area in question occurred for at least five years.

One of the most common types of a prescriptive easement is that acquired by a neighbor or the neighbor’s tenants using the owner’s driveway to access the neighbor’s property.  The use by the neighbors or the tenants for a period five years or more may create a permanent easement which not only benefits the current neighbor and tenants, but their successors as well.  When the neighbor’s property is sold, the neighbor’s successor automatically acquires the easement.

Preventing a Prescriptive Easement

As noted previously, one of the elements to acquire a prescriptive easement is that the use be hostile and adverse.  That means that the claimant cannot acquire such an easement if the use is with the owner’s consent or permission.

By definition, once permission is given, the use by the neighbor or his tenants is no longer hostile or adverse to the rights of the owner because the use is consensual.  Thus, the most immediate method by which an owner can best prevent an easement from being acquired on his property is by giving his consent to the other person’s use.

Conversely, if the owner protests the neighbor’s or the tenants’ use of the property during the five year period, or sends the trespassing individuals a letter or email objecting to the continued use, then continued use is deemed to be hostile and adverse to the owner.  As such, the use may ripen into an easement at the end of five years of continuous activity.

Thus, if an owner does not want the neighbor or the neighbor’s tenants to use the property, but does nothing to physically prevent that use (such as by erecting a fence or gate), the worst action which the owner can take is to demand that the tenants or the neighbor stop using the owner’s property, and then sit idly by while the trespass continues for the next five years. 

How the Kennel Defeated The Easement on Its Driveway

In the litigation against my client, the next door neighbor used his property to manufacture cabinetry.  Immediately to the left of his property was the kennel’s driveway, and to the left of that were the kennel’s building structures which housed the cats and dogs.

During the nearly 20 years which preceded the cabinet company’s filing of the lawsuit, the company drove its trucks and forklifts up and down the driveway for ingress and egress to the rear parking area of its property, and in particular, to transport their lumber to the loading docks at the back of its warehouse facilities.

At least two or three times a week the kennel’s employees would park vehicles along the driveway, thereby preventing the next door neighbor’s vehicles from loading the lumber into its warehouse.

As a neighborly accommodation, whenever the cabinet company employees asked the kennel’s employees to move their vehicles so as to allow access for the cabinetry maker’s trucks and forklifts, the kennel willingly and promptly capitulated.

Thus, the evidence at trial showed that on more than 2,000 occasions over two decades the kennel impliedly consented to the cabinet shop’s use of the driveway.  In other words, because the kennel moved its vehicles out of the way in order to facilitate the shop’s use of the driveway for ingress and egress, I argued, and the Court found, that that constituted the kennel’s permission to the neighbor, even though the consent was not in writing or even verbally given.  (Had the consent been given in writing at the inception of the neighbor’s use, the cabinet company probably would not have filed the litigation.)

The Superior Court judge determined that the kennel’s removal of their vehicles to aid the cabinet business’ operation was a neighborly accommodation by which the kennel gave the neighbor implied permission to use the driveway.  Indeed, the very reason that the kennel removed their vehicles thousands of times was to permit the cabinet shop’s vehicles to pass along the driveway.

What provoked the cabinet company to file the litigation against the kennel was that shortly before that event, the kennel relocated its animal exercise yard from behind its property to the driveway.  (The exercise area was formally located on leased land behind the kennel’s property.  The kennel lost its lease on that land when the MTA decided to expand their “Orange Line” along that leased land.  As a result, the kennel relocated and constructed the new exercise yard along the length of the driveway.)

When the cabinet shop’s use of the kennel’s driveway was blocked by the exercise yard, the cabinet company filed suit against the kennel claiming that it had acquired a prescriptive easement because it adversely and hostilely used it for more than five years.

The Court didn’t buy it.  The judge recognized that the kennel’s implied consent was a complete defense against the cabinet shop’s claims.


Even though the kennel’s permission to the neighbor was not put in writing, the Court determined that the kennel’s neighborly cooperation constituted implied consent.  Apartment owners may not be so lucky.

If an apartment owner does not mind his neighbor or his neighbor’s tenants using the owner’s driveway, the best action he or she can take to prevent an easement from being acquired is to send a letter, email or other correspondence to his neighbor which expressly consents to the neighbor’s, as well as the tenants’, use of the owner’s property.  Having a duplicate copy of the correspondence signed by the neighbor to acknowledge receipt would also be prudent.

Provided that the consent is given within the first five years of the use, that permission automatically ends the neighbor’s or tenants’ ability to acquire a prescriptive easement.

Alternatively, the owner can erect a gate or fence to physically prevent the neighbor’s further use.

In any event, the apartment building owner should take affirmative, positive action which either (1) consents to the use in writing, or (2) blocks the use with a gate, fence or other physical barrier.

Finally, if any AOA member has the desire to adopt or rescue a beautiful dog or cat, please check out the kennel’s website:  They have wonderful canines and felines from which to choose, and the best part is, all pets are free.


Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 40 years.  He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.  He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.

Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell.  An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.       

The foregoing article was authored on November 1, 2017.  It is intended as a general overview of the law and may not apply to the reader’s particular case.  Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.

Questions of a general nature are warmly invited.  Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067.  Phone:  (310) 277-7300.