Demystifying Prescriptive Rights

Have you ever wondered how someone can gain the right to use another person’s property without having to pay a dime? Well, in California, it’s all about prescriptive easements. Simply put, it’s a legal concept that allows individuals to acquire certain rights over someone else’s property through continuous and uninterrupted use without their permission. So, let’s investigate the mystery behind prescriptive easements and discover why it’s important to comprehend this concept.

Prescriptive easements are different from other types of easements because they are acquired through continuous and uninterrupted use of someone else’s property without the owner’s permission. Unlike other easements that may be granted through written agreements or by necessity, prescriptive easements are based on the principle of adverse possession, which grants limited rights to the user.

In the Golden State, a user of land may establish a prescriptive easement by proving their use of someone else’s property is open and notorious use, continuous and uninterrupted use for a specific period of time and hostile use (without the owner’s permission). Meeting these requirements is crucial for the user to assert their right to use the property and for the court to recognize the prescriptive easement.

When it comes to underground utilities, it may prove difficult to provide evidence of open and notorious use. Some factors to consider may be utility markers, valves, or manholes or other at grade or above grade appurtenances that are physically visible that may be beneficial to support your claim. In one case in 2015 WL 5920263 (Mass. Land Ct. 2015), the Massachusetts Land Court ruled that an owner can acquire an easement by prescription for underground utility lines if physical clues on land would put the owner on reasonable notice that the lines exist. In this case the dominant estate owner also was using a road over the servient estate and the utility lines were underneath that road. While the lines themselves were invisible, the house served by the lines clearly had electricity and phone service. The servient estate owner could observe lights on in the building located on the dominant estate and had telephoned the dominant estate owner on a land line. Additionally, there was a utility pole located next to the driveway. These facts were sufficient to put the servient estate owner on notice of the existence of the utility lines.

As you can see, there are some instances where an underground facility may have an argument and claim for prescriptive rights, but this is much easier to prove with overhead or at grade facilities such as utility poles, roadways etc. that are physically visible.

More commonly, at BRI, we will see agency and utility projects assert a claim of prescription, however, if the property owner doesn’t agree with it, that prescriptive claim would still need to be perfected through the legal system. But what about a property owner claiming an easement by prescription? On a recent project, there was a business with parking in front of the building, perpendicular to the roadway and the parking spaces were approximately ½ on their private property and ½ in the road right of way. The business owner claimed he had a right of prescription to park there. The agency disagreed. The business’s use of the parking spaces was continuous, uninterrupted and had been going on for well over 5 years. In the eyes of the property owner, all necessary elements were in place to claim the easement by prescription, especially considering they never got the agency’s permission for the parking spaces. This led to some time-consuming negotiations as the agency (not recognizing the claim of prescription) was under the impression they shouldn’t pay for the lost parking as it was on the agency’s property, without their permission. However, the property owner was losing the parking spaces due to a road widening project and demanded the agency pay for additional parking area that was being taken for the project. Eventually, BRI was able to negotiate a fair settlement between the property owner and the agency, but this all could have been avoided if documented rights existed or the parking lot was constructed fully within the property owner’s property.

In conclusion, documented legal rights explicitly stating what rights are granted to others on a given property are probably the safest way to avoid any confusion or conflicts, but it’s not the only way to obtain rights to another property.