By Gary Redenbacher, Esq.

Other than divorce cases, I find that arguments over property are the most emotional and invoke some truly irrational behavior.  Living in the mountains has advantages:  beauty, privacy and peacefulness.  But mountain living also has its drawbacks.  Since access to parcels is more difficult, people often need easements to get to their properties.  Unfortunately, easements can bring with them tremendous arguments amongst neighbors.  In one case, a frantic client of mine came home to find his driveway of 15 years barricaded.  His friendly neighbor, over whose land the driveway passed, had sunk steel and concrete lally columns 6 feet deep into the driveway while my poor client was at work. It is not uncommon for neighbors to spend tens of thousands of dollars in litigation defending an easement or trying to prevent an easement. 

An easement is simply the right to use another person’s property.  The most common easements are either for utility lines or for “ingress and egress,” legalese for a right of way.  Use is not to be confused with possession.  One who has an easement does not own or possess the property. 

Easements generally take one of two forms:  express or prescriptive.  Express is just as it sounds.  An easement is agreed upon between the two parties, expressly written up and recorded so it will show up on both parties’ title.  The description is usually in dense legalese with surveyor jargon precisely describing the boundaries of the easement and, usually, the purpose. 

Prescriptive easements are not so precise and simply arise through long term use of another’s land.  Although there are some highly technical requirements, for the most part prescriptive easements are established when one openly uses land without the permission of the landowner for at least five years.  Most people intuitively think that this cannot be.  How can someone acquire an easement when you have repeatedly said “no” to your neighbor who keeps driving across your lawn?

Let’s go back to how the West was won.  The government wanted to encourage people to settle way out West.  It, therefore, offered tracts of land to those who would develop it.  But the government didn’t want people to simply take a stake, sit on it and do nothing.  The policy was in favor of those who would use the land.  Hence, if you didn’t use it and someone else came along who used it in a manner adverse to you for a period of time, that squatter got the land.  This concept is called “adverse possession” and was imported from Europe centuries ago.  One can use adverse possession to acquire title to land, if one actually takes possession of the land, or one can use adverse possession to acquire a right to a specific use of the land.

As the West became more populated, the concept of losing your land to squatters met with a tad of resistance.  California added the requirement that in order to acquire actual title to land, you had to also pay property taxes on that land during the period you were squatting.  As a result, one doesn’t see too many adverse possession lawsuits over ownership these days.  But one does not have to pay property taxes to acquire a right to use land.  As a result, using adverse possession to establish prescriptive easements occurs regularly.  As mentioned above, a lawsuit to establish a prescriptive easement is often filed when a landowner blocks a road or path his neighbor has been traversing.  If the neighbor can show he has been using the road for over five years, along with the other technical requirements for adverse possession, the court will give him an easement.  At this point, the easement becomes an express easement which is recorded.

But what’s good for the goose is good for the gander.  You can also use adverse possession to get rid of an easement, even an express easement.  For the most part, if a landowner blocks an easement for five years, the easement can be extinguished. 

There are ways to prevent prescriptive easements from cropping up.  You can either post signs that the right to pass is with permission or you can record a special notice with the Santa Cruz County Recorder at the county building in Santa Cruz or both.  These techniques, however, will not prevent one from getting an easement who has adversely used the land for five years before the signs were erected or the notice recorded.

Although there are always caveats in the law, the basic rule for prescriptive easements is:  One who uses it, accrues it.


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