Prescriptive Easements: Your Questions Answered

In order to answer any questions about prescriptive easements, you first must define a prescriptive easement. Once, you have the easement defined, you can clarify how this type of easement is claimed, categorized, protected, or even claimed hostilely. Therefore, the answer to the first question will help you clarify the answers that proceed.

What Is A Prescriptive Easement?

A prescriptive easement takes form when another person is regularly using an owner’s property without permission. Normally, this type of use is considered as trespassing until the unauthorized person is given legal rights or permission to use the property. As a result, a dispute involving a prescriptive easement generally arises when neighbors cannot agree on the property line. Other cases involve the use of land by a utility company.

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What Are The Requirements For Making A Prescriptive Easement Claim?

Normally a trespasser on a property must prove that he or she is using another person’s real property legitimately. Therefore, according to the easement attorneys in California, the trespasser generally must prove the following:

  • The continued use of the land in question;
  • The land is used regularly and used openly in front of the property owner; and
  • The land has been used for the required amount of time per the state law. In this case, the period in California is five years. During this time, the owner of the land did not authorize or contest the trespasser’s use of the land.

Normally a trespasser on a property must prove that he or she is using another person’s real property legitimately. Therefore, according to the easement attorneys in California, the trespasser generally must prove the following:

  • The continued use of the land in question;
  • The land is used regularly and used openly in front of the property owner; and
  • The land has been used for the required amount of time per the state law. In this case, the period in California is five years. During this time, the owner of the land did not authorize or contest the trespasser’s use of the land.

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What Are The Categories Of Prescriptive Easement Use?

Property Use – This type of use occurs when an individual unknowingly uses another person’s property, thinking it as his or her own. To prove his or her case, the trespasser must show he or she used the property without contest or permission from a property owner for a specified length of time.

Use by Utility Companies – This type of use does not affect how a property owner elects to use his or her property. Easements of this type are established so utilities can run lines for electricity, water, or gas over a property. A landowner may be affected if the lines installed by a utility become damaged as the result of an owner’s negligence. That is why you need to know where utility lines are located on your property before any excavation work is done. Conversely, if a utility damages your property, you may file a claim through a San Diego easement lawyer for compensation.

Private easement use – A private prescriptive easement is often written, as a clause, in a title or land deed. It usually states that a property owner can sell a part of his or her real property for road or utility access. This type of easement is frequently used for access roads that lead to an area, such as a beach.

Easement by Necessity – An easement by necessity results when someone finds it necessary to pass across another property to get to work or school or access his or her property. An individual may make a claim for this type of easement if he or she cannot get to their destination without crossing the land.

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How Can A Property Owner Protect His Or Her Rights?

In order to protect your rights against this type of encroachment, you can take the following courses of action:

Draw up a rental contract. The property owner may offer a trespasser the alternative to rent the property. If the trespasser agrees to the contract, he or she cannot claim a prescriptive easement. If the rental contract is refused, he or she still cannot claim the easement and must leave the property. By drawing up a rental contract, the property owner can show proof that the other party trespassed on his or her land.

Contact the authorities. If the trespasser refuses to leave after being offered the rental option, the property owner is in his or her rights to have the trespasser removed.

File a lawsuit. If the trespasser claims prescriptive easement, the owner is in his or her right to file a lawsuit so a court order can be issued to remove the trespasser. Consult with a San Diego easement lawyer to institute a claim.

How Can A Trespasser Prove That He Or She Has The Right To Occupy?

A trespasser has the right to occupy a property if it can be proven that the real property was used for the time required by the state, which is five years in California. It must also be shown that the owner, during that period, did offer a rental contract or did nothing to show he or she disagreed with the encroachment.

What Is A Prescriptive Easement By Hostile Claim?

In this instance, the use of the word hostile does not mean overt hostility. Instead, a hostile claim follows two main rules of thought. These rules are represented by the Main Rule and Connecticut Rule.

The Main Rule defines any person who knows he or she is trespassing on a property. However, he or she still claim a prescriptive easement because the property was used openly for a certain length of time.

The Connecticut Rule references anyone who used the property without realizing it was owned by someone else. In this case, the trespasser can claim a good faith easement.

When a hostile claim is made, it also must be shown that the trespasser was in actual possession of the land and used it as his or her own property. Moreover, the use the property must be shown to be open and notorious, or not hidden from the owner’s view. You can gain more direction in this respect by consulting with a California easement attorney in the San Diego area.

How Do You Protect Your Property From A Claim For Protective Easement For From Trespassing?

In order to protect your land from trespassing or a protective easement claim, you, as a property owner, need to ensure your rights by practicing the following:

  1. Place signs on your property against its use by trespassers. Posting signs protect a landowner from easement by protection claims.
  2. Check your land frequently. Checking your real estate enables you to spot and remove trespassers, thereby putting a stop to any prescriptive easement claim.
  3. Zone the land. Performing a survey of the land and setting up fences discourages boundary disputes.
  4. Scrutinize a land contract carefully. Before buying land, carefully go over the title or deed. If you note a clause for a prescriptive easement, gain the necessary legal advice by contacting a California easement lawyer located in San Diego.
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Real estate easements and boundary issues are important to take care of right away before they cause complications to a purchase, sale, or agreement. It's important to select attorneys who are well versed in your case, or situation. We have over 22 years of combined experience as lawyers, and several years experience as property brokers and developers. To further discuss solutions to effectively develop and protect your real estate equity please contact us online or call 619-724-4355 to schedule a consultation.

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