Can You Get A Prescriptive Easement for Parking?

A relatively simple question:  Can you get a prescriptive easement for parking?  The simple answer – there are no cases that say you cannot.   What does this mean?  It means while the issue appears to have been dealt with several times in California’s Court of Appeal, there appears to be no published opinion calling for a prescriptive easement for parking, while there are several unpublished opinions confirming those very rights. In California, we can only rely on the finding from published opinions not unpublished opinions. This suggests that at some point in time in the near future the Court of Appeal may need to clarify this issue.

One of the leading cases in California dealing with prescriptive easements is Felgenhaeur v. Soni (2004) 121 Cal.App.4th 445. While that case and many others discuss how to acquire a prescriptive easement through the “open and notorious use that is hostile and adverse, continuous and uninterrupted for the five-year statutory period under a claim of right” there are no published opinions we are aware of dealing with a prescriptive easement solely for parking.

The reason this is interesting is that we think that parking a car on someone else’s land is not necessary consistent with easement use. Easements are typically non-exclusive.  Therefore, when something occupies the earth in a location that prevents other things and people from occupying that same space, it is a bit counter to the simple definition of an easement. We think of easement use as more transient or more temporary. That said, parking can be very temporary or transient. Think about parking at a coffee shop or gas station. Accordingly, the actual use of the parking is likely the key factor as to whether the use is the type that could lead to a prescriptive easement.

For more information on prescriptive easements and attempts to obtain or defeat a prescriptive easement for parking contact us today.  We have extensive experience with prescriptive easements and parking rights.  Call (310) 954-19877, or send us an email to info@schorr-law.com.

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Posted in Easement, Prescriptive Easement

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