Tecopa, CA asked in Land Use & Zoning, Real Estate Law and Estate Planning for California

Q: If I never filed for a prescriptive easement in california, before a recent change in ownership was made, is it too late

My Neighbor of 20+years I've learned has recently transferred title of his property via quite claim, to another neighbor, but part of his property hasn't been used by the previous owner, but rather fenced off completely no gate no signs nothing, never ! As long as I can remember. And i had been using it for years for various purposes and improvements had been made to the property by me.. can I still claim prescriptive easement for this property even though it is now technically owned by a new owner who says they will have me for trespassing if I don't get all my stuff off the property? I have geese, chickens, occasionally my dogs and a garden along with a small freshly planted fig tree, and raspberry bush,and a blueberry bush as well.. I just don't think it is fair after all these years to have to dig up or leave all trees. And bushes, garden,and all the work that has been put into this completely neglected piece of land I have been using it openly for the years I have been here. -

1 Lawyer Answer
Howard E. Kane
Howard E. Kane
  • Estate Planning Lawyer
  • Oakland, CA
  • Licensed in California

A: I am not sure that you will prevail on a prescriptive easement claim. A prescriptive easement allows a trespasser to acquire the right to use the land of another without paying for it. To acquire a prescriptive easement over another's land, the following elements must be met (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449-50):

1. Use of the land was continuous and uninterrupted for five years.

2. Use of the land was open and notorious. This means the owner had actual or constructive notice that someone was using his land.

3. The use was hostile. This means it was done without the permission of the owner.

If you are 3 for 3, then you may prevail. If you fall short, then you will not prevail. Either way, you may end up with a hostile new neighbor.

Yelena Gurevich agrees with this answer

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.