Prescriptive Easement Issue Arises Against Kind Neighbor

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NO GOOD DEED WILL GO UNPUNISHED, and that is certainly the case in the law of prescriptive easements.  Here, a well-meaning property owner invited her neighbor onto her property to perform some clean-up.  She quickly realized that her offer of entry put her squarely in the sights of a future easement claim.  Her posting on AVVO.COM follows, as well as my response:

“A neighbor cut a road across our property. a sheriff has given me an incident number. I think I need a lawyer… help!  We live in the forest, in SugarPine. Neighbor refuses to repair the damage. We granted access for him to clean up his needles, and now there is a 150′ Road!! Please advise what I should do next THANKS!! “

This question raises issues of trespass, prescriptive easement and others. Based upon the facts you stated here, the neighbor appears to have exceeded the rights of use you granted him; however, there could be more to this than offensive behavior. The action hints at an intention to set up prescriptive rights on your property. In order to establish a prescriptive easement in California, a claimant must take action on your property that is “open and notorious,” continuous and uninterrupted for a period of at least five (5) years (occasional use could establish the prescriptive use right for the same frequency, e.g., on weekends), adverse, and subject to a “claim of right” (i.e., not consented to). The holder of a “servient estate” (you) must have actual knowledge of the prescriptive use in order for such use to be “open and notorious.”

While situations like these appear on their surface to constitute simply rude and offensive behavior, the statutory requirements for prescriptive easements actually warrant such behavior in order for the offender to succeed(!) Thus, while the two suggestions of Mr. Martz (consulting a lawyer and writing a letter) are good initial considerations in your strategy to address the matter, the manner in which you or your attorney communicate with this claimant is of equal importance. For example, your attorney may consider whether the demand letter should be sent via certified mail, return receipt requested, in order to satisfy legal requirements and ensure you can meet your evidentiary burden. The lawyer may consider a lawsuit for quiet title or other relief. If the matter can be resolved, the attorney might consider whether a settlement agreement should be recorded to ensure that the resolution runs with the land. The bottom line is that consulting with qualified counsel here is an especially good idea because taking the “wrong” action could end up being tantamount to taking no action at all. This is particularly true in light of the 5-year statutory deadline.

Stephen Hammers
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