The underlying premise of Anglo Saxon Law on property can be put in a simple phrase: “Use it or Lose It!” The idea of property lying fallow and unused or owned by distant Lords was disliked by the tax hungry central Kings and they constantly worked at passing statutes that would force the various landholders to either make the land profitable or lose it.
That long history of struggle between King and Parliament resulted in law that now exists on the books that requires the holder of land NOT to be passive or the owner risks the loss of use…or even ownership of land to those actually using it.
The law on loss of title to land since someone else is using it in an obvious manner for at least five years and pays taxes on it is discussed in our article on Adverse Possession located elsewhere on this website.
But it is not only ownership one can lose. If someone uses your land in a certain way for a certain period of time, one can gain RIGHTS on the land which are permanent, such as rights of entry or to pass over the land for a specific purpose, and those rights are called PRESCRIPTIVE EASEMENTS. That is the topic of this article.
EASEMENTS AND PRESCRIPTIVE EASEMENTS
An easement is a right to make certain types of use of property. The most common is the right to build a road across someone else’s land (or use a road) in order to get access to your own land. Another common easement is the right to cross someone’s land in order to get to a railroad track or access to the ocean.
Easements can be public or private. Thus, California has imposed on many owners of property a public easement to get access to beaches or other public areas. Alternatively, I can purchase from an adjacent landowner certain easements, such as easements to cut wood or clear a fire lane; to build a road to gain access to property; to lay electrical or water lines, etc, etc. Commonly, large oil companies purchase easements to extract oil or gas from landowners who are using property for other purposes such as farming. And all of us have seen the electricity generating wind mills dotting the landscape. All those exist on property owned by farmers (usually) who grant easements to place the windmills on their land in exchange for a percentage of the income generated.
Easements can be personal to the user (I have an easement to walk to my home across your land but the easement dies when I do) or they may “run with the land” which means anyone who owns my land will be able to my easement to use your land as I do.
It is important to understand that the easement right is an ownership interest in property. It is as “real” as any other form of ownership, from having a title deed to leasing property and it can be bought and sold (if not personal to me) and often is as valuable as the property itself. A typical example is when land that is useless since it has no access to a public road becomes extremely valuable when it obtains access to the State highway. Often a developer will pay hundreds of thousands of dollars to gain an easement to buy access to a nearby road so that the developer can thereafter develop the property. Equally vital is the ability to use land to run telephone, electric and water lines to property or the right of the government or utility companies to run such lines over various properties.
Prescriptive easements are easements created not by purchase or inheritance but by use over time. As with adverse possession, one can gain an easement if one uses the property in a certain way without
the owner of the property objecting and taking appropriate action to stop you and extinguish the easement.
THE BASICS OF PRESCRIPTIVE EASEMENT
Easements do not exclude the use of the original owner of the land, as adverse possession does, but allows another to use the land along with the original owner. If someone else uses the property, that person may gain a "prescriptive easement." This "easement" is an actual ownership interest in the property. It doesn't exclude the owner, which means the owner can continue using the property. But if the occupant gets an easement, then the occupant has a legal right to continue using the property. The owner can not exclude the occupant or stop him or her from using the property. The process for obtaining a prescriptive easement is similar to the process for obtaining title to property through adverse possession.
Unlike adverse possession which requires a minimum of five years uninterrupted use AND paying taxes, an occupant need not pay taxes to get an easement unless the easement has taxes separately assessed. In order to get an easement, an occupant must occupy the property
1. "openly",
2. "notoriously"
3. "continually"
4. for a period of 5 years.
The occupant does not have to live on the property or stay on it. Even driving over a road when needed is sufficient as long as the owner does NOT give permission and as long as the use is sufficiently open that the owner can observe it.
After five years of such use, the occupant, or user, holds an "easement by prescription."
This easement is not a full ownership of the property, but a right to use the property. Easements can be granted for such things as use of an irrigation ditch, driving over a road, or walking or driving over a portion of property. Other uses could also become an easement as long as the use continues for five years without interference from the owner.
One phrase above is important to note: if the owner ALLOWS such use then no easement is allowed. The affirmative act of granting a license to use the land in that way maintains rights in the owners since the license can be revoked.
To protect themselves from potential claims of easement, owners sometimes post signs at each entrance to their property and at certain intervals along the boundary. These signs usually say
"Right to pass by permission, and
subject to control of owner: Section 1008, Civil Code."
When done properly, these signs can prevent users or occupants from gaining an easement in the property.
There can be no easement by prescription to light and air since under California law, such rights are not allowed due to the negative effect it would have on development. (In other nations such rights are possible to obtain.)
Aviation easements by prescription can be achieved under the standard flight path to airports.
However, the issue of “nuisance” can be utilized by adjoining land owners to try to restrict use. (“Nuisance” is the law halting obnoxious use of one’s property that interferes with another’s use and is discussed elsewhere in this website.)
If one is using your land, the way for you to maintain effective control of his or her right is to not only post the above sign, but to advise the user that if they do not agree to execute a document in which they admit that you have the right to withdraw the right (a license) that you will be forced to deny them access. Failure to act will ultimately result in them obtaining a permanent easement which could have a tremendous effect on the value of your property.
For example, if you fail to object to a neighbor using your land to move cattle or allow people to enter via automobile or motorcycle to view an attraction he or she has, then that can become a right they have achieved through prescriptive easement. If ten years later you decide you wish to sell the land and a developer indicates that their plan requires that such access be denied, then your land may no longer be available for such development unless you “buy” the prescriptive easement back!
Your better tactic would have been to grant, if only for a token, a yearly license to your neighbor to use the land for the neighbor’s purposes in a writing that, among other things, indicates you have a right to revoke the license upon one year’s written notice. If the neighbor had refused, you would then be compelled to immediately seek legal counsel since otherwise you will find yourself losing value in your land…for free.
CONCLUSION
As with adverse possession, it is vital for land owners to understand that passivity loses rights to land. Just as with any other investment, you must demonstrate intelligent vigilance if you wish to protect its value and if you own land you do not use or visit constantly, you must set up a system by which you review the actions of your neighbors and others to assure yourself you are not losing valuable rights…and you must take aggressive and prompt legal action should your rights be at issue.
In California land has appreciated in value over eight percent per year for over a hundred years. Land is wealth and to protect your wealth, be it land or stocks, one must remain alert and be ready to take immediate appropriate action should circumstances warrant. Do not make the mistake of assuming that because you have a piece of paper recorded in the County Recorder’s Office that you need not worry about protecting you and your family’s interest in the property.
Leonardo da Vinci in 1512 could have been speaking of Prescriptive Easements when he said,
“It is easier to resist at the beginning than at the end.”
Indeed, it may be impossible to resist at the end in this particular area of the law. Be alert and move fast!