PRESCRIPTIVE EASEMENTS IN CALIFORNIA LOU SEGRETI, MIKE WHITTON AND ANDY PULS
is to give them permission to
use it. The traditional method in
California is to post a sign on
the property that reads as
follows: “Right to pass by
permission,
and
control,
owner:
of
1008, Civil Code.”
subject
7
to
Section
The signs
may be posted either at each
entrance of the property or at
intervals of 200 feet or less
along its boundaries.8
If the
signs are removed by trespassers
or otherwise, they must be replaced at least once per year.9
While this approach prevents acquisition of
prescriptive rights, the drawback is that the property owner is publishing permission to pass, and therefore might
actually encourage rather than prevent third parties from using it.
To prevent the general public from acquiring an easement, owners of coastal properties (land that lies within
1,000 yards of certain coastal waters) have the additional option of recording a notice of consent pursuant to
California Civil Code, section 813. Significantly, however, recording such a notice will not prevent an individual
trespasser’s prescriptive rights from ripening unless the notice is also served on a specific individual by
registered mail.10 Here again, the drawback is that the coastal property owner must allow the public to access
the land in question. Owners of non-coastal properties do not need to record a notice of consent to prevent the
general public from acquiring an easement in their land because there is already statutory protection under
California Civil Code section 1009 preventing public easements/implied dedications over non-coastal land.
A third option is simply to provide express permission to the individual(s) using the land. Here, however, the
property owner can later run into problems proving the use was permissive rather than hostile. To minimize risks,
property owners should obtain and record a written agreement from each person using the property (including
successors to the original user(s) stating that: (1) any use of the owner’s property is by permission of the owner
only; and (2) such permission is subject to revocation by the owner at any time in the owner’s sole and absolute
discretion.
A fourth option is to physically prevent or interrupt any adverse use of the property by constructing a gate, wall or
other barrier, or continuously monitoring adverse use. The downside to this approach is that interruption of the
five-year period requires that the prescriptive use actually terminate. In other words, simply constructing a fence,
changing a lock, or erecting a wall will not prevent the acquisition of a prescriptive easement if the adverse user