A Primer on Adverse Possession and Prescriptive Easements
You have probably seen a sign posted on a fence or near a driveway, “WARNING: Trespassers Will Be Prosecuted.” That is because title to real property comes with a bundle of rights, including the right of exclusion – that is, the ability to generally limit who may or may not enter upon and use the property. Anyone that enters upon another’s property without permission or other legitimate right is a trespasser and can be ejected by the owner. But there are important exceptions. The purpose of this article is to explain certain circumstances under California law in which a would be trespasser can acquire a recognized legal interest in real property.
Trespassers can acquire fee title ownership to another’s property if they can satisfy five requirements:
(1) Possession is held under either a claim of right or color of title. In other words, the person claiming title by adverse possession is attempting to defend his claim against all others.
(a) The requirements for possession under a claim of right are more stringent than those required under color of title. Trespasser claimant must show that the property is actually occupied, substantially enclosed or usually cultivated or improved.
(b) Possession held under color of title is premised upon a written instrument, judgment or decree that purports to transfer ownership of the property but, due to some defect, does not have such legal effect. Trespasser claimant must show that the property is actually occupied, usually cultivated or improved, protected by a substantial enclosure or, although not enclosed, used for the supply of fuel, timber or pasturage.
(2) Possession is actual, open and notorious in such a manner that constitutes reasonable notice to the property owner. Generally, this means that the trespasser is using the property in a normal and consistent manner for the type of property involved.
(3) Possession is hostile to the property owner. This means without authority, consent or permission of the property owner and without recognition of the rights of any other person to the property, including the property owner.
(4) Possession is uninterrupted and continuous for at least five years. Seasonal or periodic use may qualify, so long as it is consistent with the usage pattern of an owner of property similar in nature to the affected property.
(5) The trespasser timely pays property taxes for the applicable property for the five-year possession period.
The party claiming title by adverse possession has the burden of proving each of the five requirements, with each requirement being essential to the claim. Title to the affected property vests in the trespasser claimant upon satisfaction of the five requirements, with no further steps being required to “acquire” title.
A trespasser claimant may be able to establish a valid claim to use of another’s property by prescriptive easement. The requirements are essentially the same as that of a claim of adverse possession, except in two regards:
(1) The element of exclusivity is omitted.
(2) The payment of property taxes is not required.
Contrary to the rights acquired by adverse possession, the successful trespasser claimant who establishes a prescriptive easement only has a limited right to the use of a specific area of an owner’s property in a manner consistent with the use during the period that the prescriptive easement was being established. The property owner retains all rights associated with title, so long as those rights do not infringe upon the claimant’s now established prescriptive rights. For example, the property owner cannot install a structure that unreasonably impedes the pathway of the recognized prescriptive easement.
Prescriptive easements should also be distinguished from encroachments. In Harrison v. Welch (2004) 116 Cal. App. 4th 1084, a case involving an encroaching shed, the court held that an exclusive easement “will not be granted in a case … involving a garden variety residential boundary encroachment.” Encroachments, however, may give rise to an equitable easement, implied easement or easement by necessity (discussed below).
Even if the facts are insufficient to establish grounds for a prescriptive easement, a court may nonetheless find an “equitable easement” exists by balancing the hardships imposed upon the property owner and the trespasser claimant. The three requirements that the trespasser claimant must establish for an equitable easement are:
(1) The trespasser claimant’s use and improvement of an easement is for a long period of time with an innocent belief that the trespasser claimant had a right to use the easement.
(2) There is irreparable harm caused to the trespasser claimant if the trespasser claimant could not continue to use the easement.
(3) The property owner would suffer little harm from the further use of the easement by the trespasser claimant.
The second and third requirements are related in that, between the property owner and the trespasser claimant, the trespasser claimant must suffer a disproportionate hardship if further use of the easement is prohibited. In most instances, equitable easements involve neighboring properties with an encroachment originating on one property and falling within the property line of a neighboring property.
Generally, easements are created either in writing or by prescription. An exception to this general rule is the implied easement. There are three requirements that a trespasser claimant must establish that warrant the creation of an implied easement:
(1) The owner of property conveys or transfers a portion of his or her property to another.
(2) The owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue.
(3) The easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.
While there is no formal easement of record, since the owner holds title to all properties at the time of transfer, the court assumes that the parties intended the continuance of the preexisting use of the property.
Easement by Necessity
Easements by necessity are similar to implied easements and are created when public policy requires the creation of an easement so that a parcel of property can be accessed and utilized. The elements of an easement by necessity are:
(1) The servient and dominant tenements were in common ownership at some point.
(2) Due to conveyance by the common owner, one parcel becomes completely landlocked.
Preventing Adverse Claims to Title
The most common way for an owner to avoid claims of adverse possession or prescriptive rights is to simply prohibit the use by the trespasser. For example, an owner can construct, within the five year period, a barrier to entry or install signage prohibiting entry or use. The effectiveness of a barrier or sign may be limited, however, as such barriers can be climbed, jumped or have openings, and signs can be disregarded, such that use may not actually be interrupted. Determination of the essential elements of the claim are factual, and the fact of such actions intended to a prohibit claimant’s conduct are probative as to whether the use was hostile or otherwise meets the statutory requirements.
Some signage has been determined by statute to be effective. California Civil Code Section 1008 provides that “[n]o use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: ‘Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.’” Pursuant to this Code section, signs must be maintained annually.
Similarly, California Civil Code Section 813 provides that the recording of a notice in the office of the recorder of the county in which the property is located “is conclusive evidence that subsequent use of the land during the time such notice is in effect by the public or any use for any purpose … is permissive and with consent … .” The notice must read substantially as follows: “The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code.” To be effective as to a specific user, however, the notice must also be served by registered mail on such user.
Finally, California Civil Code Section 1007 establishes that the doctrines of adverse possession and prescriptive easements are inapplicable to government owned property, no matter how long a would be claimant has used the government property.
The foregoing article was prepared by Richard Rasmussen and Pablo De Leon. Anglin Flewelling Rasmussen Campbell & Trytten LLP (AFRCT) is a full-service law firm, providing legal counsel in most every area encountered by businesses operating in the western United States.