PRESCRIPTIVE EASEMENTS: CC 1008

One person may acquire an easement over the land of another, without the landowner’s consent. This is called a prescriptive easement. Prescriptive easements are acquired by a process similar to, but different from, adverse possession.

To acquire a prescriptive easement, a person must use the land of another in a way, which is “open, notorious, continuous and adverse for an uninterrupted period of five years.” Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal. 3d 564, 570. In short, to obtain the easement, the person must act as if he or she already owns the easement, in an open and obvious way, for at least five years.

A prescriptive easement is an involuntary conveyance. The party obtaining it need not pay the landowner for it. Once a prescriptive easement is established, the party owning the easement may have his or her rights to it enforced by the law. Among other things, the owner of the easement may obtain an injunction to force the landowner to remove any obstructions to the easement, which are erected after the easement is obtained.

To obtain a prescriptive easement, it is essential that the use of the easement be hostile to the rights of the landowner. If the landowner consents to the use, then no prescriptive easement is obtained. If a landowner sees that others are using his or her land, he or she may protect his or her ownership rights by posing appropriate written notices on the land. Civil Code Section 1008 provides that:

No use by any person or persons, no matter how long
continued, of any land, shall ever ripen into an easement
by prescription, if the owner of such property posts at
each entrance to the property or at intervals of not more
than 200 feet along the boundary a sign reading substantially
as follows: “Right to pass by permission, and subject to
control, of owner: Section 1008, Civil Code.”

Please note, however, that the owner of the land must post the Section 1008 notices; posting by a tenant of the land does not satisfy the statute. Aaron v. Dunham (2006) 137 Cal. App. 4th 1244.

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