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Not So Smart Common Sense (Part 2 of 2)

Columnist: Susan M. Teel
August, 2011 Issue

Susan M. Teel
All articles by columnist
Last month’s column described two adjacent landowners, “Joe” and “Jane,” and recounted Joe’s claim for the right to use a road on Jane’s property for which he didn’t have a deeded easement. Joe was bragging that he’d taken a proactive, “common sense” approach and solved the problem a number of years ago, but then Jane demanded he stop using the road. Joe called for advice and learned his approach had inadvertently made his claim harder to protect. Since we discussed Joe’s solution last month, we’ll now discuss what Jane might have done to protect her property from Joe’s prescriptive easement.

A prescriptive easement is a legal right of access arising from longstanding (at least five consecutive years), open use of land that’s “hostile” or “adverse” to the owner’s rights. Hostile or adverse use can be based on a mistaken belief that the user has a legal right to use the property in question, or it can be based on the intent to create a prescriptive easement.

Could Jane (or her predecessors) have protected herself from the creation of such an easement short of objecting to Joe’s first usage (which would have risked precipitating a conflict with Joe)?

Jane and her predecessors actually had three options: Post signage using the statutory language of California Civil Code (CC) 1008, stating “Right to pass is by permission, subject to control of owner”; record and serve a “Notice of Consent to Use of Land” under CC 813, stating access is by permission only and subject to control of owner; and/or approach Joe when they first learned of his use to reach an agreement that usage was and would continue to be permissive.

The two described statutory options offer prospective protection against prescriptive easements only. In other words, if the required five years of adverse use have already occurred before signs are posted or notice is served and recorded, signs and notice won’t defeat that easement. But an agreement by Joe acknowledging that his use has been and continues to be permissive would defeat his claim to a prescriptive easement.

Under CC 1008, an owner may post signs at each entrance to the property or along the boundary at 200 feet intervals. The sign must substantially read “Right to pass by permission and subject to control of owner, CC 1008.” These signs must be posted by the owner or owner’s agent. Signage gives notice that the owner has given permission to pass onto the property, which defeats any claim of adverse use.

The advantage of posting signs is that no direct communication needs to be given to known adverse users. However evidencing statutory compliance can be difficult and is often a disadvantage of posting signs, as such signs are commonly removed by disgruntled neighbors. If an owner elects to use this procedure to protect his or her property, we recommend a written log confirming that signs remain in place, including dated photographs beginning with the initial sign posting and continuing with periodic inspections at regular intervals.

Under CC 813, if an owner records and serves a “Notice of Consent to Use of Property” (Notice), he or she creates a conclusive presumption that any subsequent property use within the scope of the Notice will be by owner permission and will not give rise to a private prescriptive easement.

The advantage of this tactic is that the owner will easily be able to prove statutory compliance, since the Notice is recorded with the Proof of Service and becomes a matter of public record. A disadvantage is that the Notice must be served on known users, such as Joe in our example, telling them they have permission to continue their use. Many owners are uncomfortable using this counter-intuitive strategy, thinking it might encourage the very use they wish to stop.

The quickest, most effective solution is giving express permission to the holder of a potential prescriptive easement (in our example, Joe) in exchange for an acknowledgment that the use has in the past been, and in the future will continue to be, permissive. All too frequently, this is the last option considered, but it should be the first. Simply, if Jane approaches her neighbor while they’re still on good terms, they can reach an agreement whereby Jane gives Joe permission to continue his use and Joe acknowledges his past use has also been permissive. The agreement should be written, although it can be as simple as a signed letter or as formal as a recorded license agreement including indemnity, insurance and hold harmless provisions. To be safe, any such agreement should be drafted or at least reviewed by counsel.

If the express permission route is followed, it can only be effective to defeat claims by the person acknowledging permission (in this case, Joe) and not claims by other possible prescriptive users. It’s usually best, therefore, for someone in Jane’s position to pursue more than one solution.

Looking back, what could Jane have done to protect herself from Joe’s previously perfected prescriptive easement? Remember, Joe had been using the road for more than five years before Jane acquired her property. Unless Jane is able to reach an agreement with Joe, Jane is stuck. If Jane had spotted the issue during the contractual due diligence period, prior to completing her purchase, she could likely have taken constructive action to protect her property rights. It pays to get advice before acting in tricky legal circumstances.

Co-authored with Paul G. Carey, Esq. Paul was responsible for the major legal reasoning and fact analysis. He is a director of Dickenson, Peatman & Fogarty and specializes in real estate matters, particularly litigation. While his primary office is located in the DP&F Napa complex, he’s frequently available in the Santa Rosa office.


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