PRESCRIPTIVE EASEMENTS IN CALIFORNIA LOU SEGRETI, MIKE WHITTON AND ANDY PULS
picks the lock, climbs the wall, or hops the fence. Additionally, the construction of the physical obstacle could
conceivably be used as evidence by the trespasser against the owner of the property that the use was, in fact, not
permissive.
An Emerging Pitfall: Equitable Easements
Even if a property owner successfully prevents a trespasser from gaining prescriptive rights in his or her property,
in some cases the trespasser may nevertheless be entitled to an equitable easement. An equitable easement may
exist where (1) use of the property qualifies as “innocent,”and (2) the court balances the relative hardships of the
parties and finds that the burden associated with loss of use by the trespasser is substantially greater than the
hardship to the owner caused by the continuance of the easement.
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“Innocent” merely means that the party is
acting with a good faith belief that they have a right to maintain the easement. That belief can be based on
reasonable reliance on the property owner’s acts or inaction, or even a justified belief in an existing prescriptive
right! 12 Thus, a user of land who “just misses” perfecting easement rights via prescription (by, for example, failing
to establish the element of hostility) might still acquire an equitable easement in the very same property. 13
Scope
Finally, understanding the potential scope of a prescriptive (or equitable) easement further underscores why its
prevention is important. Once an easement is established, courts may allow an increase in the degree of the use
of the easement.
14
Permissible increases in degree of use might include the number of people using the
easement, provided the increase in usewas a reasonably foreseeable development.
allow changes in the manner or type of use of the easement.
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15
In contrast, courts rarely
Thus, for example, most courts would probably
not allow pedestrian use to increase in scope to vehicular use.
Conclusion
Prescriptive easements can arise in a wide variety of circumstances, and the law views every piece of real
property as unique.
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Thus, property owners should diligently monitor their property and carefully consider all
available options for protecting and enforcing their real property rights. 18