An Easement is the right to use somene else’s land. A prescriptive easement is a right acquired by long term use.

The elements for adverse possession and a prescriptive easement are identical except for the fourth element- the payment of taxes. (Sulivan v. Balestrieri (1956) 142 Cal.App.2d 332 [298 P.2d 688].)

To acquire title by prescriptive easement or by adverse possession, the claimant must establish: (a) hostile acts to the true owner’s title; (b) actual, open, and notorious occupancy of the land; c) possession under a claim of right or a color of title; (d) continuous and uninterrupted possession for five years; and (e) payment of all taxes levied and assessed for the possession period. (Safwenberg v. Marquez (1975) 50 Cal.App.3d 301 [123 Cal.Rptr. 405.)

One party “Mover” moved a fence has been in place for 40 years because a recent survey indicated that a portion of land on the other side of the fence (” V”) belonged to Mover. (the “Disputed Property.)

Hostile Possession and Claim of Right.

When the V purchased their home, the fence made the Disputed Property appear to belong to the V, they were told by the real estate broker that the Disputed Property was their property. V have watered, improved and maintained the Disputed Property as their own for more than 20 years. As a result, The V treated the Disputed Property as theirs, creating the necessary hostile intent to possess it.

Actual Open and Notorious.

There is no question that The V’s possession of the Disputed Property was open and notorious because their possession by way of various improvements was clearly visible to A.

Claim of Right.

At all times, the V’s have fenced the Disputed Property and treated it as their own,

excluding A under a claim of right.

Possession for Five Years.

The use of the Disputed Property began in the 60’s and has continued to the present date by all owners of the V property, until last month when A moved the fence. Thus, the five years is easily met.

These Elements are enough for a prescriptive easement to use A’s property in the future.

For more information contact David DiJuliomailto:[email protected].

DiJulio Law Group: Los Angeles real estate attorneys with more than 35 years of experience. Call 888-519-1613 or emal [email protected].

DiJulio Law Group