For every easement, there is a property owner (called the “Servient Tenant”) that legally owns and is on title to the land; and there is a non-owner (called the “Dominant Tenant”) that uses a portion of that property as if they owned it.  Sometimes, this easement right arises by agreement of the parties or their predecessors, such as through an Easement Deed; and other times this easement right arises without consent, such as through a Prescriptive Easement.  This Article will focus primarily on the non-consensual Prescriptive Easement because that generally is where the legal battles are fought.

Here is an example that may clarify this concept:

Abel’s property abuts a side road that leads to the highway. But for more than five years, Abel has been using a shortcut by driving across Baker’s land and getting on the Highway from Baker’s land. Baker has known about Abel’s shortcut for years but never really cared.  Now however Baker wants to develop his land and to do so he must stop Abel’s shortcut.  So he erects a fence where Abel’s land joins his and another fence where Baker’s land abuts the highway.
Will this stop Abel?  Not likely.

Abel’s first reaction to the fence would reasonably be some demand to Baker that the fences blocking the shortcut be removed.  Baker would probably refuse citing that he is the property owner not Abel. Abel would then typically get the assistance of a real estate attorney (such as BPE Law).  The attorney would then send Baker a letter outlining the facts that Abel had established a Prescriptive Easement because:
(1) he had been crossing Baker’s land without interruption for at least 5 years;
(2) Baker knew of Abel’s use; and
(3) Abel’s action was hostile to Baker’s property rights yet Baker did not protest or block him.
At this point, Baker would likely seek attorney advice. If he still refused to allow Able access, Abel would likely file a lawsuit against Baker seeking an Order establishing and enforcing a Prescriptive Easement across Baker’s land.

A lawsuit to enforce a Prescriptive Easement starts with the filing of a Complaint in Superior Court in which Abel would allege facts showing that he had met each of the above-referenced “elements” required to establish a Prescriptive Easement on Baker’s Property.  Since this lawsuit would affect Baker’s title to the Property, Abel might at the same time record a Notice of Pending Action (also called a “Lis Pendens”) giving public notice of his claim.  This could be especially important if Baker is in the process of subdividing or selling his Property.  Able might also seek a Restraining Order and Injunction compelling Baker to re-open the shortcut to Abel during the course of the litigation.

Baker might raise several defenses in seeking to defeat Abel’s Complaint.  The primary approach would be challenging the validity of Abel’s facts.  For example:
(1) Was Abel’s use of the shortcut actually continuous and uninterrupted for at least five years?  (2) Was Abel’s use something that Baker reasonably might not have been aware of;
(3) Was Abel’s use actually hostile or was it “permissive”, ie: done with Baker’s consent.

What many people do not realize is that only about 5% of lawsuits that get filed ever end up going to Trial.  Most cases settle somewhere along the way as the evidence supporting one side’s set of facts gains greater credibility over the other side’s facts. Further, absent some written agreement, no-one is likely to recover attorney fees in such an action.  Under the circumstances, Baker may come to fear that Abel could win the lawsuit and thus destroy Baker’s development plans.  If so, a settlement could be possibly reached which could allow Abel access while allowing Baker’s development to continue.  For example, relocating Abel’s easement or configuring it into the development plans might produce a mutually acceptable compromise.

The last step in the enforcement or defense to a Prescriptive Easement claim is letting the world know of the results.  If it went to Trial, then the resulting Judgment or Order could be recorded in the title of Baker’s Property.  If it was resolved by Settlement, then the Settlement Agreement or a Memorandum thereof could be recorded.  The purpose of this step is to ensure as much as possible that neither Able nor Baker nor their successors will have to re-litigate this issue at some day in the future.

For over 20 years, the attorneys of BPE Law Group, P.C. have been advising and representing property owners and real estate professionals in dealing with their legal concerns including easements and other land-use issues. Our major  areas of practice include: Real Estate, Business, and Estate Planning. We do business primarily in California although our clients are world-wide.  Check us out on the Web at: www.bpelaw.com.  If you would like a consultation with us, please call our office at (916) 966-2260 or e-mail me at sjbeede@bpelaw.com.

This article is not intended to be legal advice, and should not be taken as legal advice.  Every case requires review of specific facts and history, and a formal agreement for service.  Please feel free to contact us if you need legal advice and are interested in seeing if we can help you.