By Lou Segreti

Sleeping on your rights is a dangerous approach to any situation, but when California landowners fail to exercise their right to eject trespassers from their land, the consequences for the landowner can be especially severe.

In California and other states, adjoining landowners, strangers, or even the public at large can acquire rights to use another’s property without any obligation to compensate the owner of the property for such use by acquiring what is known as a prescriptive easement.  The acquisition of prescriptive rights, related to the concept of adverse possession, may at first glance seem unfair to some, but the concept is firmly rooted in state law and serves the purpose of rewarding long-time users of land, encouraging the optimal use of land, and discouraging landowners from sleeping on their rights.

How a Prescriptive Easement Can be Established

In California, a party can establish the existence of a prescriptive easement by proving that his or her use of another’s land was continuous and uninterrupted for five years; visible, open and notorious; and hostile to the true owner.

“Continuous and uninterrupted” use means that the use occurred over at least a five-year period on occasions necessary for the convenience of the user. Under some circumstances, even occasional or seasonal use is sufficient to meet this element. For example, one court granted a prescriptive easement over a road used to access hunting grounds only during hunting season.  In another case, a prescriptive easement was awarded over an area used by delivery trucks only so often as deliveries were being made.

Unlike adverse possession, exclusive use of the area is not required to establish prescriptive rights.  Indeed, an easement for exclusive use of property is ordinarily not obtainable because easements usually involve the non-exclusive right to burden another’s land.

“Visible, open and notorious” use means use that provides actual or constructive notice to the owner of the property such that the owner has an opportunity to take action to prevent the adverse use. Generally, this means that the use of the land was sufficiently visible that anyone viewing the land would have been able to discover it.

Use of land ordinarily qualifies as “visible, open and notorious” so long as it is not hidden or concealed from the property owner.  Visible use of a path or roadway is one common example of visible, open and notorious use of land; whereas a completely concealed underground pipeline providing no evidence of surface disturbances is an example of a use that would probably not qualify as visible, open and notorious.

“Hostile” use means the land is used without the permission of the owner. Whether the use of land qualifies as permissive is often a fact-intensive inquiry. Some cases also focus on whether the use was made under a “claim of right,” sometimes interpreted as requiring proof of subjective intent on the part of the trespasser. However, the modern view rejects the additional state of mind requirement and looks simply to whether the use was undertaken without permission of the landowner.

Finally, and unlike adverse possession, a party claiming prescriptive rights does not need to establish the payment of property taxes; that is, unless property taxes are separately assessed to the easement area being used.

Special Cases – Prescriptive Use By and Against Tenants

A tenant’s prescriptive use of land can create a prescriptive easement in favor of their landlord.  But it is not necessarily true that a user of land will acquire prescriptive rights when the servient tenement is in the possession of a tenant.

Generally, prescriptive rights may not be acquired against a landlord who is not in possession of their land.   The logic behind this rule is that a future interest cannot be the subject of a prescriptive easement because the statutory period only runs against a present, possessory interest in land.  Actions for ejectment or trespass require that the owner have a present possessory interest in the property he or she seeks to protect, and it would be unfair to allow prescriptive rights to accrue against a landlord who lacks the ability to institute an action to eject a trespasser.

There is, however, an important exception to this general rule.  If the landowner comes into possession of the land during the adverse use, for any period of time, including constructive possession at the expiration of a renewable lease, the landowner must then take action to evict the prescriptive user of land or prescriptive rights against the landlord may be acquired.

Protecting Against the Acquisition of Prescriptive Rights

There are several ways to ensure that a trespasser’s use of land does not mature into a prescriptive easement.

A suit for ejectment or trespass brought within five years of the inception of the adverse use is one option for landowners, and it may be a necessary step to prevent the acquisition of prescriptive rights by others.

Physically interrupting any adverse use of the property by constructing a gate, wall or other barrier is another option for preventing adverse use of a property and preventing the ripening of prescriptive rights.  But this option can be costly and requires consistent monitoring of the property and barrier because interruption of the five-year prescriptive period requires that the prescriptive use actually terminate.

In other words, simply constructing a fence, changing a lock, or erecting a wall will not prevent the acquisition of a prescriptive easement if the adverse user picks the lock, climbs the wall, or hops the fence. Indeed, the construction of the physical obstacle could conceivably be used as evidence by the trespasser against the owner of the property that the use was, in fact, not permissive. A picked lock or a scaled wall might constitute valuable, convincing evidence that the use of land was made without the permission of the landowner.

Somewhat counterintuitively, another way to prevent a trespasser from gaining an adverse interest in your property is to grant permission to use it.  Landowners may post a sign on the property that reads as follows: “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.” The signs must be posted at each entrance of the property or at intervals of 200 feet or less along its boundaries. While this approach can prevent acquisition of prescriptive rights, the drawback is that the property owner is publishing permission to pass, and therefore might encourage rather than prevent other parties from using the land.

Another option for landowners is to provide express permission to specific individual(s) using the land.  That said, the property owner may later run into problems proving the use was permissive rather than hostile. To minimize risks, property owners can obtain and record a written agreement from each person using the property stating that any use of the owner’s property is by permission of the owner only; and such permission is subject to revocation by the owner at any time in the owner’s sole and absolute discretion.

Once prescriptive rights are established, courts may allow increases in the degree of the use of the easement. Permissible increases in degree of use might include the number of people using the easement, provided the increase in use was a reasonably foreseeable development. In contrast, courts rarely allow changes in the manner or type of use of the easement. Thus, for example, most courts would probably not allow pedestrian use to increase in scope to vehicular use.

Most title insurance policies do not insure for the risk of a prescriptive easement.  This is because prescriptive easements tend to arise from unrecorded rights.  Buyers purchasing property must therefore rely upon their own inspection of the property, representations and warranties of the property owner, and/or acquisition of an extended coverage title policy eliminating coverage exceptions for unrecorded easements, if such a policy is available under the circumstances.

Equitable Considerations

While most often arising in the context of encroachments onto adjoining land, equitable easements and other equitable considerations may come into play when courts are evaluating claims of prescriptive use.

An equitable easement may exist where use of the property qualifies as “innocent,” the public or the property owner will not be irreparably injured by the use, and the balance of relative hardships between the parties strongly favors the land user.

“Innocent” means that the party is acting with a good faith belief that they have a right to use the area in question. The innocent belief can be based upon reasonable reliance upon the property owner’s actions or inaction, or in some cases even upon a justified belief in an existing prescriptive right.

The conduct of the party claiming an equitable right to use another’s land cannot be willful or even negligent.  To qualify as willful, the land user must not only know that he is using another’s land, but also act without a good faith belief that he has a right to do so.

In balancing the hardships between the landowner and the putative trespasser, the court must find that the hardship to the trespasser from having to cease the trespass is greatly disproportionate to the hardship caused by the continuance of the encroachment/use. By way of example, periodic use of a driveway providing the only reasonable access to an adjoining property may result in an equitable easement in favor of the putative trespasser because the use is reasonably necessary to the land user and minimally burdensome to the landowner.  But a party who knowingly gardens a neighbor’s property, even after having spent money to water and improve the land, could be denied an equitable easement unless the court determines that the hardship associated with ceasing the use is greatly disproportionate to the hardship caused by the continued encroachment.

When evaluating equitable easements, a court has the power, but not the obligation, to award monetary damages to compensate the landowner for the encroachment.

Separate and apart from equitable easements, the concept of equitable estoppel can operate to bar a landowner’s claim for ejectment or trespass if the land user innocently and reasonably relied upon representations of the landowner and was induced to act based upon those representations.

The concepts of revocable and irrevocable licenses also arise in disputes over adverse use of property.  A license can be created by express permission or by acquiescence in another’s use of land.  And while a license may ordinarily be revoked at the pleasure of the licensor, a license can become irrevocable, indefinitely or for a period of time, if the licensee expended a substantial amount of money or labor after reasonably relying upon the existence of the license.

The expenditures made in reliance upon the license must be substantial.  Trivial expenses do not suffice.  So, the construction of a residence, roadway, or even a wall will in some cases qualify as a substantial expenditure supporting the award of an irrevocable license; but modest expenses associated with maintaining landscaping improvements would probably not qualify.

Conclusion

Prescriptive easements and equitable considerations can arise in a wide variety of circumstances, and the law views every piece of real property as unique.  As a result, property owners should carefully consider all available options for protecting and enforcing their property rights.