As we discussed in previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement by prescription.
Establishing a Prescriptive Easement
To establish a prescriptive easement, a claimant must prove use of the property, for the statutory period of five years, which has been: (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under a claim of right. (Main Street Plaza v. Cartwright & Main (2011) 194 CaL.App.4th 1044, 1054.) Generally, the claimant has the burden of proof of proving each of the elements necessary to establish that the easement has been created by prescription. (Code Civ. Proc. § 321.) Whether the easement satisfies the above requirements is considered a question of fact. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 571.) Accordingly, a claimant is usually entitled to a jury trial on these factual issues. (Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 125-126.)
In addition to the above requirements, the claimant also must show that their prescriptive easement is not exclusive. What this means is that a claimant generally cannot establish a prescriptive easement for a physical encroachment. (See Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296) This is because an easement is meant to allow someone to make specific use of someone else’s property, and not to obtain fee title. (Id.) Otherwise, a claimant could do an end run around the tax requirement for obtaining fee title via adverse possession. (Id.) Accordingly, prescriptive easements have traditionally been granted for rights of way and ingress and egress purposes.
However, as we will discuss in future posts, you may still be able to obtain an easement for a physical encroachment if you can establish that you are entitled to an easement based on the equitable principles.
Whether your easement issues involve right of ways or physical encroachments, Schorr Law has experience analyzing easement issues related to all types of easements. To inquire about a free consultation, please call (310) 954-1877 or email firstname.lastname@example.org. You can also send us a brief message by using our Contact Form.
By Stephanie Goldstein, Esq.
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