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What are Prescriptive Easements

An easement is an interest in real property that entitles its owner to limited use or enjoyment of land in the possession of another. A common example of an easement is the situation where landowner one has the right to use the property of an adjoining property (owned by landowner two) for the purpose of entering and exiting landowner one’s property.

Most commonly, easements are created by an express grant between landowner one and landowner two.  However, occasionally an easement may be created even without the consent or permission of landowner two.  One such manner is the creation of a prescriptive easement or an easement by prescription.

A property owner (landowner one in our example) asserting rights to a prescriptive easement must show that he or she has used the property over which the easement is claimed (property of landowner two) for at least five years, and that his or her use has, during all of that time, been open, notorious, adverse, continuous and uninterrupted. [Taormino v. Denny, (1970) 1 Cal. 3d 679, 686; Welsher v. Glickman, (1969) 272 C.A.2d 134, 137].

If the requirements of a prescriptive easement are met, the prescriptive user acquires title to the easement, and that title is “sufficient against all,” including landowner two. No compensation would have to be paid by the prescriptive user (landowner one) to landowner two.

I have effectively represented many clients in easement cases.  If you believe that you would benefit from a consultation regarding a possible prescriptive easement or other easement issue, please feel free to contact me to arrange for a consultation at (510) 465-0025.

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