Prescriptive easements are once again front and center in the news.  On March 5, 2015 California Court of Appeal restated the principle that “constructive” knowledge by an owner of the neighbor’s use of his land is sufficient notice to create an easement by prescription even if the owner did not have “actual” knowledge of the use. 

In Pulido v. Pereira, the facts were relatively straightforward.  In 2001 Antonio Pulido purchased certain unimproved property with the intent to someday build a house on it.           In the interim, Pulido used the property for target shooting.  He visited his land several times a month to walk around it and shoot targets. 

Significantly, every time Pulido went there, he had to untie a chain which Pereira (the next door owner) had strung between two posts at the entrance to “Quartz Hill Drive.”  Quartz Hill Drive was actually Pereira’s private roadway entrance to the remainder of his land. 

For the next six years or so, Pulido visited his own property nearly every weekend and traveled upon Quartz Hill Drive to access it.  After those six years of usage, Pulido filed a lawsuit against Pereira to establish a prescriptive easement across the Pereira’s property (specifically, Quartz Hill Drive) for ingress and egress to and from Pulido’s property.

Both at trial and on appeal, the court ruled in favor of Pulido explaining that he was able to demonstrate all of the elements necessary to acquire an easement across another’s land.  Those elements are: visible use, continuous over time, adverse or hostile to the property rights of the actual landowner, and uninterrupted usage for a period of at least five years.

In the unpublished portion of the decision, the Court of Appeal commented that even if Pulido had used Pereira’s land for less than five years, Pulido was entitled to take advantage of the use made by his own predecessors who used Pereira’s land for ingress and egress to and from what ultimately became Pereira’s property.  In law, we call that the principle of “tacking.”  That is, the years of use by the present claimant can be “tacked on” or added to the years of use by his predecessors.

Thus, an adjoining neighbor, merely by consistently using an owner’s property without his consent for a period of five years, may acquire a permanent easement in favor of that claimant neighbor. 

That was true under the Pulido v. Pereira case even if the owner of Quartz Hill Drive did not actually see, and therefore did not have actual knowledge, of the neighbor’s use of the owner’s land.  Under law, it is sufficient if the use was not concealed, such that if the owner (often times an absentee owner) had looked he would have observed the repeated usage.

In the newly published decision, the Court of Appeal held that even without actual knowledge, the owner would have “constructive” notice because Pulido’s access of ingress and egress on Pereira’s Quartz Hill Drive land was visible and therefore open and notorious. 

With respect to apartment buildings, prescriptive easements most commonly arise when a neighbor or the neighbor’s tenants use the adjacent owner’s driveway or side yard to access their own property.  For example, if the neighbor’s tenants repeatedly walk on the grass or pavement abutting the property where they reside in order to enter or leave their own property, then after a period of five years that usage may become a permanent right.

Similarly, if driveways for both properties abut one another such that the tenants on one property frequently drive along a portion of the neighboring property for ease of access, that usage may ultimately ripen into a prescriptive easement for the benefit of the trespassing tenants, and in turn their landlord. 

Although a prescriptive easement may arise through five years of usage, the only way to prove its existence is by a court judgment.  Of course, most types of easements are established merely by recording the appropriate notarized document with the County Recorder.  That recordation alone is sufficient for a title company to insure clear title to the easement.  But because a prescriptive easement is established by usage rather than a written instrument, it is not insurable without the Court issuing a judgment which is then recorded.

Let’s now examine the methods by which an owner can protect his property from an easement, with particular emphasis to defenses to a prescriptive easement. 

Preventing a Prescriptive Easement by Consent

As noted previously, to acquire an easement by prescription, the claimant must establish five elements.  Among those elements is the requirement that the use by the neighbor (or the neighbor’s tenant) be “adverse.”  This means that the claimant cannot acquire a prescriptive easement on an owner’s property if the use is with the owner’s consent or permission. 

Thus, the simplest method by which an owner can prevent an easement from being acquired on his or her property is by giving his consent to the other person’s use.  Once permission is given, the use by the neighbor (or the neighbor’s tenant) is not “adverse.”

Accordingly, an owner can prevent an easement from being acquired merely by providing the neighbor or other user with a letter which expressly contains the owner’s permission for the individual to use the owner’s property.  Provided that this consent is given within the first five years of usage, the consent automatically ends the neighbor’s or tenant’s ability to acquire the easement even if the other party continues to use the owner’s property.

Conversely, if the owner protests the neighbor’s use of the property during the five year period or sends the neighbor a letter objecting to continued use, then the neighbor’s continued use is deemed to be “adverse” and may ripen into an easement at the end of five years.  Thus, if an owner objects to the neighbor’s use of the property but does nothing to physically prevent that use (such as by the erection of a fence), the worst action which the owner can then take is to give written notice demanding that the neighbor stop using the owner’s property.  While this seems contrary to common sense, written letters objecting to a neighbor’s usage, followed by continued usage by the neighbor, allows, rather than prevents, the easement to come into existence at the end of five years.  On the other hand, an owner’s consent to the usage during the first five years thwarts the acquisition of an easement. 

Erection of a Barrier

Another method to prevent a prescriptive easement from being acquired is for the owner to construct a wall or other barrier which physically excludes the neighbor from using the owner’s property.  So long as the impediment is erected within the first five years, the easement will not be acquired. 

Posting of Recording Notices

Other methods to prevent the acquisition of a prescriptive easement are by posting notices or recording permission with the county recorder.  Under Civil Code Section 1008, an easement is barred if the owner posts at each entrance to the property, and at intervals not more than 200 feet along the boundary, a sign reading “Right to Pass by Permission, and Subject to Control, of Owner:  Section 1008, Civil Code”.

Alternatively, the owner may record with the County Recorder the following notice (which is generally used solely with recreational land):  “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 a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner:  Section 813, Civil Code.” 

Injunctive Relief

An owner might also file a lawsuit against the neighbor for the appropriate restraining order and injunctive relief arising out of the trespass whereby the court will issue a cease and desist order against the neighbor.  If the neighbor violates the order by continuing to use the owner’s property, the court has the power to incarcerate the neighbor for contempt of court. 

Neighbor’s Liability to Owner

During the first five years of usage, if the neighbor (or his tenants) traverse the owner’s land, the neighbor may be liable to the owner for compensatory damages arising out of the trespass, and sometimes emotional distress damages and punitive damages.  On the other hand, if the neighbor or his tenants adversely use the owner’s land for five years and thereby acquires a prescriptive easement, the neighbor will have no liability to the owner for further usage. 

Protection from Other Types of Easements

Generally speaking, there is no readily effective way to protect against an easement created by a deed or other writing.  Nevertheless, if the instrument is decades old and no use has been made of the easement in recent memory, it is possible that a court would determine that the easement has been abandoned and thereby issue an order extinguishing it.

Alternatively, the owner of the property might be able to approach the grantee of the written easement, or the grantee’s successor, and negotiate for a quitclaim deed which renounces the easement in favor of the current property owner. 

Concluding Remarks

The ownership of property is one of the most cherished rights we have in America.  To encourage property owners to supervise their property and tend to their rights, the California State Legislature has given an owner a five year grace period during which to prevent others from literally trampling on those rights. 

Thus, each owner wishing to retain the full right and authority to his land needs to be circumspect about its use by others.  Prompt measures should be taken to prevent a neighbor’s use from becoming a permanent easement. 

SICK LEAVE LAW REMINDER

Owners and management companies should keep in mind that beginning July 1, 2015, every employer must provide his or her California employee who works 30 days or more per year with three to six days of paid sick leave per annum.  That is applicable with respect to resident managers because they are employees, not independent contractors.

Owners and management companies should update their resident manager agreements in advance of the July 1 effective date of the new legislation.  For a detailed discussion of California’s new sick leave law, please see my column published in the March 2015 issue of AOA Magazine. 

Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 38 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. You may Google “Dale S. Alberstone” for further background.          

The foregoing article was authored on April 1, 2015.  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.