Hello Everybody. My discussion this month examines the difference between the acquisition of title to another’s land by adverse possession and acquisition of title to another’s land by a prescriptive easement. Judging from the numerous letters and telephone calls I have received from AOA members over recent years, it is a troublesome issue to many. So I will try to clarify it once and for all.
Adverse Possession Explained
Adverse possession is a legal doctrine by which title (i.e. ownership) to one person’s property becomes vested in the name of another person. That vesting is then confirmed by a court judgment.
To establish title by adverse possession, the claimant must prove that he occupied the subject property in an open and notorious fashion, that his possession was hostile to the owner’s title, that the claimant claimed the property as his own, that possession was continuous and uninterrupted for five years, and that he paid all of the real property taxes levied against the property during those years.
The requirement of “open and notorious” occupation simply means that the claimant’s use of the land would have been visible to the true owner had the owner chosen to look. For example, in the illuminating case of Nielsen v. Gibson (178 Cal.App.4th 318), one aspect of the owner’s defense against a claimant’s action for adverse possession was that she was in Ireland throughout the 5 years and therefore did not have reasonable notice of the occupation. The California Court of Appeal disagreed with the defense by this colorful language: “An adverse user must unfurl his flag on the land, and keep it flying, so that the owner may see it, if he will, that the enemy has invaded his domains, and planted the standard of conquest. … The owner [who] none the less fails to look in the direction of the flag, or is not in the area to observe it, will not undermine its effect.”
The Nielsen case arose out of facts where the claimant was given a deed to certain property in Granite Bay, California, by the father of his incompetent daughter who was living in Ireland. But the daughter was actually the owner of the real estate, not the father.
The claimant believed that the deed was valid and began occupying and improving the property. Those acts included blockage of the access road from the public road, posting no trespassing signs, irrigating the property, planting gardens, repairing the perimeter fencing, maintaining the vegetation, building a go-cart track on the property, and allowing his children to use the cabin on the property for sleepovers and a play area.
The claimant also paid the real property taxes and assessments against the property.
Based on those facts, the Court of Appeal held that the claimant had acquired title by adverse possession.
Had the claimant not paid the taxes on the property, then regardless of whether he complied with the other requisite elements to procure title, he would not have obtained the land by adverse possession.
Nielsen is unusual because claimants almost never pay the taxes on the property they are claiming. Ordinarily the taxes are paid by the true owner and the claimant merely uses the property for five years in an open and notorious manner.
In Nielson, the reason the claimant paid the taxes is that he mistakenly believed that the deed he received conveyed title to him.
Thus, adverse possession cases are rare because one seldom encounters a party who is willing to pay property taxes on property which he does not own. Conversely, the true owner of the property would typically pay the taxes himself.
Once adverse possession is established (which can only be officially determined by a court decree), the claimant becomes the new owner and he can exclude the former owner from the property.
Prescriptive Easements Explained
Acquiring a prescriptive easement on a property requires proof of substantially the same elements as adverse possession, with the exception that payment of the property taxes is unnecessary. The distinguishing end result between a prescriptive easement and adverse possession is that, unlike adverse possession, a prescriptive easement does not transfer legal ownership to the claimant. Instead, it merely confers upon the claimant a legal right to jointly use the property in conjunction with the true owner.
Except for cases where public policy is involved (such as acquisition of an easement by a water district), our courts have held that exclusive use of a property by a claimant, even for the full five years, prevents the acquisition of a prescriptive easement. That determination is based on the recognition that an easement involves shared usage rather than a dispossession of the true owner. While adverse possession dispossesses the owner, a prescriptive easement does not.
Thus, if a neighbor encroaches on another’s property by erecting a long fence beyond the neighbor’s boundary line, the neighbor will not acquire an easement after five years. The reason is that the fence would have physically prevented the true owner from using his own land between the fence and the boundary. That exclusion is inconsistent with the joint use of the land.
Thus, courts require the claimant who exclusively occupied someone else’s property to prove, if possible, that he paid the real estate taxes (in which case he will acquire title by adverse possession).
In the context of prescriptive easements, the claimant always starts off as a trespasser. After 5 years of shared use, he goes from being a trespasser to someone with a lawful, joint possessory interest in the land.
Defenses to Adverse Property Claims
The most frequent defense to any lawsuit for adverse possession or a prescriptive easement is for the owner to establish that he consented to the claimant’s use during the 5-year period of occupancy. California law is clear that if the true owner gives his permission to claimant’s use, the required element of “hostile” use for either adverse possession or prescriptive easements can never be satisfied. Under law, consensual use nullifies hostile use because the owner approved of it.
If the claimant’s use is truly acceptable to the owner, the owner should document his consent in writing and ask the other person to sign that paper.
On the other hand, the worst action the owner can take is to constantly, or even occasionally, object to the use, shake his fist, and demand that the user stay off the owner’s land. Though perhaps counter-intuitive, such action helps solidify the adverse user’s “hostile” claim for a prescriptive easement, or adverse possession if he also pays the taxes.
How to Protect Your Property
Here are the best ways for an owner to protect his property from a neighbor obtaining adverse possession or an easement on the property:
1. Give Written Consent:
If the owner does not mind a neighbor using the owner’s land, deliver a letter to the neighbor giving permission to make such use of the property at all times in the future. Also, provide in the letter that such permission will only be revoked if the owner thereafter delivers a written cancellation notice. Ideally, the owner should have the neighbor countersign that letter.
2. Erect a Fence:
Another method to prevent a prescriptive easement or adverse possession from being acquired is for the owner to erect a fence or other barrier immediately adjacent to his side of the boundary. So long as the barrier is erected within the first 5 years after the hostile use has begun, the neighbor will not acquire a prescriptive easement or title by adverse possession.
3. Post Notices:
A more technical way to prevent the acquisition of an easement is to post notices or record permission with the County Recorder. Under Civil Code Section 1008, an easement is prevented if the owner posts, at each entrance to the property or at intervals no 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 a Notice as authorized by Civil Code Section 813. Ordinarily, such a recordation will only be made if it pertains to recreational land.
4. File a Lawsuit:
An owner may also file a lawsuit against a neighbor for a restraining order, an injunction, and a declaratory judgment, among other remedies. The court may then 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 trespassing person for contempt of court. Such a suit must be filed before the expiration of 5 years from the commencement of the neighbor’s use.
5. Seek the Advice of Counsel:
In any situation where the neighbor will not stop using the owner’s land, the owner should seek the advice of a real estate attorney.
So there you have it. A prescriptive easement is the acquisition, confirmed by a court judgment, of the right of one person to shared usage of another’s land. Once such an easement is acquired, it will remain in perpetuity unless the claimant (or his successor) ceases using the land for the statutory period of five years.
Adverse possession is the transfer of title and needs to be confirmed by a court judgment. But adverse possession rarely occurs in California because the claimant has not paid the property taxes for the preceding 5 years.
Rights acquired by a claimant under adverse possession or by satisfying the elements of a prescriptive easement are automatically transferred to the claimant’s successors-in-interest, and continue to burden the servient tenement (i.e., the true owner’s property) even after the owner conveys it to a successor.
Also, if a neighbor adversely uses an owner’s property for three years and then sells his own property to a new neighbor who adversely uses the owner’s land for the next two years, the new neighbor acquires a prescriptive easement through a legal doctrine known as “tacking.”
Bottom line: It is best not to allow a neighbor to use your land for more than just a short time.
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 February 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.