PRESCRIPTIVE EASEMENTS IN CALIFORNIA LOU SEGRETI, MIKE WHITTON AND ANDY PULS
Elements of a Prescriptive Easement
In California, a user of land may establish a prescriptive easement by proving that his or her use of another’s land
was: (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile. 2
The first two requirements are relatively straightforward. “Continuous” use means that the use occurred over a
five-year period on occasions necessary for the convenience of the user. In some circumstances, even occasional
or seasonal use is sufficient.3 For example, one court granted a prescriptive easement over a road that was used
to access hunting grounds only during hunting season. 4
Use of property is “open and notorious” when it provides actual or constructive notice to the owner.5 This means
only that the use of the land is sufficiently visible that anyone who bothered to view it would be able to discover it.
Generally, the use will be considered “open and notorious” so long as it is not hidden or concealed from the
property owner.
In
most
cases
involving
prescriptive
easements, the most difficult element to
prove is hostility. A use of land qualifies as
“hostile” if it is done without the permission
of the owner. Whether the use of land
qualifies as permissive can be a factintensive inquiry. Some older cases also
focus on whether the use was made under
a “claim of right,” which was sometimes
interpreted as requiring proof of subjective
intent on the part of the trespasser.
However, the modern view rejects this additional “state of mind” requirement and looks simply to whether the owner has consented to the use of the
property. 6
Ways to Prevent Prescriptive Use
Perhaps the most important thing for a property owner to understand about prescriptive rights is how to prevent
them from being acquired in the first place. There are several ways to ensure that a trespasser’s use of land does
not mature into a prescriptive easement.
Somewhat counter-intuitively, often the best way to keep someone from gaining an adverse interest in your property