When I was a youngster, my mother always told me “You can’t get something for nothing.” Mother, bless her heart, obviously didn’t own much real estate.
What mother didn’t know is that almost all real estate—even the old family homestead—is at risk from what is known as a “prescriptive easement.”
The policy of the law is to favor the actual use of real estate. The law, in proper situations, also favors certainty in the use of real estate. What all this means is that in real estate, owners must either “use it or lose it.” And for non-owners, the policy can be “use it—and get it.”
An owner, who doesn’t use real estate for five years, may lose ownership if a stranger occupies the property for those five years and pays the taxes on it. This principle is known as “adverse possession.” If the owner pays the taxes each year, then he or she can’t lose ownership of the property.
However, 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 may not be able to 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. However, an occupant need not pay taxes to get a prescriptive easement unless the easement has taxes separately assessed.
In order to get a prescriptive easement, an occupant must occupy the property for five years. The occupant doesn’t have to live on the property or stay on it. Even driving over a road when needed may be sufficient as long as the owner doesn’t 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 isn’t ownership, but it is a right to use the property.
Obtaining a prescriptive easement might look appealing. But persons who unlawfully and without permission enter property belonging to someone else can be guilty of a trespass. As a result, the obtaining of a prescriptive easement can in some cases result in potential trespass problems.
To protect themselves from potential claims of easement, owners can post signs at each entrance to their property and at certain intervals along the boundary. These signs 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. However, property owners do well to seek professional legal counsel before placing such signs, because the law contains specific requirements for such signs to be effective.