How to Prevent Losing Property via Adverse Possession or Prescriptive Easement

Boundary, Fence, & Tree Disputes and Easements by Simon Offord, Esq.

One of the topics we deal with most often pertaining to neighbor disputes are adverse possession or prescriptive easement claims. These are claims whereby one property owner claims that because of extended use of another’s property, they have gained either ownership rights (adverse possession) or easement rights from said use.

We’ve written extensively about the basics of easements and how to create an easement, and we recently produced a webinar about easements & boundary law in California.

As a quick refresher, the elements of prescriptive easement are:

  1. possession under a claim of right or color of title;
  2. actual, open, notorious occupation (protected by a substantial enclosure such as a fence and usually cultivated or improved);
  3. adverse and hostile possession;
  4. continuous possession for a period of five years; and

 

The elements of adverse possession are:

  1. possession under a claim of right or color of title;
  2. actual, open, notorious occupation (protected by a substantial enclosure such as a fence and usually cultivated or improved);
  3. adverse and hostile possession;
  4. continuous possession for a period of five years; and
  5. payment of all taxes assessed against the property during the five-year period.

 

The only difference between the elements of adverse possession and prescriptive easements are that in adverse possession, you must prove the payment of taxes. This is because with adverse possession, you obtain ownership of the disputed land, not just a continued right to use the land for the same historical use.

So, if one is concerned about losing rights in their property under either of these theories, is there anything that can be done short of filing nor lawsuit or making sure the encroacher leaves? Well….we would not be writing this article if there was not!

One method is to record what is called a “Notice of Consent to Use Land.” This is a statutorily created mechanism, found in Civil Code Section 813. Specifically, the Code provides:

“The holder of record title to land may record in the office of the recorder of any county in which any part of the land is situated, a description of said land and a notice reading 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 .’

The recorded notice is conclusive evidence that subsequent use of the land during the time such notice is in effect by the public or any user for any purpose (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is permissive and with consent in any judicial proceeding involving the issue as to whether all or any portion of such land has been dedicated to public use or whether any user has a prescriptive right in such land or any portion thereof.  The notice may be revoked by the holder of record title by recording a notice of revocation in the office of the recorder wherein the notice is recorded.  After recording a notice pursuant to this section, and prior to any revocation thereof, the owner shall not prevent any public use appropriate thereto by physical obstruction, notice or otherwise.

In the event of use by other than the general public, any such notices, to be effective, shall also be served by registered mail on the user.

The recording of a notice pursuant to this section shall not be deemed to affect rights vested at the time of recording.

The permission for public use of real property provided for in such a recorded notice may be conditioned upon reasonable restrictions on the time, place, and manner of such public use, and no use in violation of such restrictions shall be considered public use for purposes of a finding of implied dedication.”

Some key items to point out from the code section. First, it is critical that the notice is recorded and served (by registered mail) on the encroacher(s) before 5 years of consecutive use (as the notice shall not be deemed to affect rights vested at the time of recording).

Another method is to give explicit permission to the encroacher to use your land. In an ideal situation, this would be documented, for example, with a revocable license, that specifically lays out the rights and duties of the parties. The license can help insure that the encroacher is responsible for any damage or claims resulting from his or her use, for them to have insurance, etc.

Yet another method is to actually lease the subject property to the encroacher, assuming the encroacher will agree.

These are the easiest methods, and generally do not require a significant amount of work, and so the time is certainly worth the investment. A lawsuit regarding alleged adverse possession or prescriptive easement claims can get expensive quickly, and thus the actions outlined herein can save you tens of thousands of dollars, and your land.

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