“Adverse” Element for Adverse Possession/Prescriptive Easements

One of the factors for obtaining a prescriptive easement or adverse possession is that the use of land must be “adverse” to the true property owner. What does “adverse” mean?

The term “adverse use” “means only that the owner has not expressly consented to [the use] by lease or license….” (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450, 17 Cal.Rptr.3d 135 (Felgenhauer).)

The 2006 case of Aaron v. Dunham, 137 Cal.App.4th 1244, provides insight on what the adverse term means.   It provides as follows:

“Adverse use” means only that the claimant’s use of the property was made without the explicit or implicit permission of the landowner. As explained in Felgenhauer: “Claim of right does not require a belief or claim that the use is legally justified. [Citation.] It simply means that the property was used without permission of the owner of the land. [Citation.] As the American Law of Property states in the context of adverse possession: ‘In most of the cases asserting [the requirement of a claim of right], it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.’ (3 Casner, American Law of Property (1952) Title by Adverse Possession, § 5.4, p. 776.)” (Felgenhauer, supra, 121 Cal.App.4th at p. 450, 17 Cal.Rptr.3d 135; see also Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp. 571–572, 199 Cal.Rptr. 773, 676 P.2d 584 [“continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence and in the absence of evidence of [express] permissive use it will be sufficient to sustain a judgment”].)”

Ultimately, the question of whether the person claiming an interest in another person’s land through a prescriptive easement or adverse possession is actually “adverse” is a question of fact left for the trier to fact to decide.   The real estate attorneys at Schorr Law have significant experience with cases involving adverse use through either adverse possession or prescriptive easement claims.

For help with your matter, contact us today, for a consultation. P: (310) 954-1877) | Text: (323) 487-7533 | E: info@schorr-law.com | Use our Contact Form! 

By Zachary Schorr, esq.

Share Button
Tagged with: , ,
Posted in Adverse Posession, Prescriptive Easement

Zachary D. Schorr’s Expert Appearance on the Dr. Phil Show

Zachary D. Schorr’s Expert Appearance on ABC’s Nightline

Contact Schorr Law

Super Lawyers

Zachary Schorr Superlawyers

Zachary D. Schorr has been named to the Southern California Super Lawyers (Rising Stars) list for attorneys in Real Estate for 5 straight years - 2012, 2013, 2014, 2015 and 2016. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. In 2016 he was also included as one of the top 100 lawyers in Southern California in this category. The selection for this respected list is made by the research team at Super Lawyers.

Need Representation?

If you are currently involved in a real estate dispute, either commercial real estate or residential, and are looking for a Real Estate Attorney in Los Angeles with a cost-effective, results oriented approach designed to meet your case's specific needs, contact the attorneys at Schorr Law. Our real estate firm has the specific knowledge and experience necessary to get you the best possible results.

AVVO 10.0

Zachary Schorr Avvo Rating

Avvo Clients’ Choice Award Recipient

Zachary Schorr Avvo Client's Choice Award