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
PREMIUM
Howard E. Kane
Answered
  • 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

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