The old American adage is \u201cgood fences make good neighbors,\u201d but at times there are property boundary disputes between neighbors when the fence does not track the actual property boundary. When these conflicts occur, understanding the legal nuances of property rights becomes essential. Here\u2019s a clearer look into adverse possession, prescriptive easements, equitable easements, and how disputes, especially those involving trees, are managed.<\/p>\n
First year law students are often surprised when they learn that if a \u201csquatter\u201d occupies land in a manner that is (1) under a claim of right, (2) actual, open and notorious giving reasonable notice to the true owner, (3) hostile to the true owner, (4) continuous for a period of at least five years and (5) payment of property taxes on that land for the same five year period, that trespasser invader may claim title to that land by adverse possession.<\/p>\n
However, in practice, it\u2019s rare that the true property owner would not take any action to remove this trespasser for five years while knowing of the trespass. But more to the point, a trespasser virtually never pays property taxes on the land he is \u201csquatting\u201d in and claiming the right to for the five (5) year period. This essentially means that, in most cases, adverse possession is a dead letter in California and very rarely enforceable.<\/p>\n
Prescriptive easements often come into play in boundary disputes, allowing someone the right to use land without owning it. The elements for a prescriptive easement mirror those of adverse possession, but do not <\/strong>require payment of taxes on the claimed easement in the land. Again, it requires use for five (5) years that is (1) under a claim of right, (2) actual, open and notorious giving reasonable notice to the true owner, (3) hostile to the true owner and (4) continuous for a period of at least five years.<\/p>\n Unlike adverse possession, a prescriptive easement doesn’t require the payment of taxes and is usually established when the use of land is shared with the true owner, rather than exclusive. For example, using a pathway across a neighbor’s land openly and continuously for five years may establish a prescriptive easement, provided it’s done without the owner’s explicit permission.<\/p>\n In prescriptive easement, if the claimed prescriptive easement is enclosed so that only the claimant can use it, not the true title owner, then a prescriptive easement cannot <\/strong>arise. Silacci v. Abramson<\/u> (1996) 45 Cal.App.4th 558 [holding where claimant to a prescriptive easement\u2019s use of the easement has been exclusive rather than shared, a prescriptive easement cannot arise as prescriptive easements only confer right of use rather than ownership of the easement].<\/p>\n Another common way landowners seek to stop any claimant from asserting a prescriptive easement is by posting notices that right of passage is by permission of the landowner only and may be revoked at any time. This helps show that anyone passing by is by right of permission of the true owner, rather than hostile to the true owner (a necessary element to claim a prescriptive easement). If a landowner knows that a neighbor is passing through his land and may claim a prescriptive easement after 5 years, before expiration of that period he may seek to defeat the future prescriptive easement by posting notices that right of passage is permissive or by fencing off the land as well to prohibit neighbor passage.<\/p>\nEquitable Easements: Balancing Hardships<\/strong><\/h2>\n