Last time we talked about how one of two neighbors (“Joe”) should be careful not to compromise or lose his claim to a prescriptive easement to continue using a road on his neighbor’s (“Jane’s”) property by using not so common, common sense. This time we’ll talk about what Jane could do to protect her property from prescriptive easements.

Readers will recall from the last blog (or may already know), that a prescriptive easement is a legal right of access that arises from longstanding (at least 5 consecutive years) open use of property, hostile to the property owner’s rights or under claim of right, including a claim based on a mistaken belief that a legal right already existed. What, you may ask, can an owner like Jane do to protect her property from the creation of such an easement if she doesn’t object to Joe’s use when it first began and doesn’t want to lock Joe out or sue him if he refuses to stop using the road on her property?

There are three ways to protect against prescriptive easements in a situation like this: first, Jane and her predecessor could have posted statutorily prescribed signage on their property (Cal. Civil Code section 1008); second, Jane and her predecessor could have recorded and served a statutorily prescribed Notice of Consent to Use of Land (Cal. Civil Code section 813); and/or third, Jane and her predecessor could have approached Joe when his use first began to confirm that his use was permissive, not hostile. It is important to note, however, that the two described statutory options offer only prospective protection against prescriptive easements. What that means is this: If the prescriptive easement had already come into being before the signs are posted or the notice is served and recorded, then the signs and notice will not defeat that easement. This caveat is the subject of the postscript at the end of this blog.

Posting signs: Under section 1008, a property owner may post signs at each entrance to his/her property or along the property boundary at intervals of not more than 200 feet.  The sign must read substantially as follows: “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”  These signs give notice to the world of permission to pass onto the property, which defeats any claim of adverse use.  (Aaron v. Dunham 41 Cal.Rptr.3d, at 36.)  The section 1008 signs must be posted by the property owner or his/her agent, not by a lessee.  (Aaron v. Dunham 41 Cal.Rptr.3d, at 37-38.) Section 1008 reads in full as follows:

            The advantage of this procedure is that no direct communication needs to be given to known adverse users (which in some people’s view encourages further use). The disadvantage of this procedure relates to proof of compliance with the statute. In that regard, it is not uncommon for such signs to be removed (particularly in cases of acrimonious neighbor relations), thus making proof of compliance with the statute more difficult. For that reason, when clients elect to use this procedure to protect their properties, I recommend that they or someone working for them keep a written record (like a log book with dated photographs) beginning when the signs were first posted, and continuing through periodic inspections at regular intervals such as every month or every 6 months.

Notice of Consent: Section 813 allows a property owner to record and serve a Notice of Consent to Use of Property. Such a notice creates a conclusive presumption that any subsequent use of the property within the scope of the notice will be deemed to be permissive and will not give rise to a private prescriptive easement. The full text of that statute appears below:

            The advantage of recording such a notice is that proof of compliance with the statute will always be possible since the notice will be a matter of public record. Care should be taken, however, to be sure to include a proof of service with the recorded notice (demonstrating compliance with the service requirements of the statute) so that such proof also remains a matter of public record. The disadvantages of this alternative are, in my opinion, that: (1) where the use is by persons other than the general public (i.e., repeated use by known individuals such as  neighbors) the notice must also be served by certified mail on those known adverse users, thereby telling them that they have permission to continue their use (which some property owners don’t like to do); and (2) the statute prohibits the landowner recording the notice from interfering with the permitted use “by physical obstruction, notice or otherwise” until the notice of consent is revoked. Although I have not found any appellate decision determining the effect of any such subsequent interference, I believe that if ever raised on appeal, California courts will hold that such interference eliminates the protection from prescription otherwise provided by the statute (it is also possible that a trial court would reach the same conclusion even in the absence of guiding precedent given the plain language of the statute, although I have seen at least one trial court refuse to do that).

Express permission: Express permission is the quickest, most effective and least expensive solution to the problem of a potential prescriptive easement, yet it is often the last option considered if it is considered at all. Simply put, if Joe in our example acknowledges in writing to Jane (or her predecessor) that his use is and has been permissive (and is thus not hostile or adverse), then Joe’s use will not ripen into a prescriptive easement so long as Joe does not later expressly repudiate that permission and begin and complete a new 5 year prescriptive cycle of use. A unilateral offer of permission, however, is not sufficient, unless it is extended pursuant to the recorded notice or posted sign statutes discussed above. Instead, the potential prescriptive user (Joe, in our example) must acknowledge and accept the permission for this alternative to be effective. Given that proof is the measure of success, the acknowledgment should be written, although the form of the writing can be as simple as a signed letter or as formal as a recorded license agreement including indemnity, insurance and hold harmless provisions.

            If the express permission route is followed, however, it is important to remember that permission will only be effective to defeat claims by the person acknowledging permission and not claims by other possible prescriptive users who might not be known, but whose use is sufficiently open and adverse to qualify as prescriptive use. Therefore, it is usually best for someone in Jane’s position to pursue more than one solution.

            Postscript: In the last blog I mentioned a principle called “vesting.” Simply put, once 5 years of the requisite hostile use has passed, a prescriptive easement will become fixed and enforceable (i.e., it will “vest”), such that any later statutory signs or recorded notice will not defeat that easement. However, an express agreement with the neighbor (“Joe” in our example) acknowledging that the present AND historic uses are and have been permissive can, if properly drafted, offer such protection. So what could Jane have done in our example to protect herself from a previously perfected prescriptive easement in Joe’s favor (remember, under our facts, Joe had been using the road for more than 5 years before Jane acquired her property)? Unfortunately, there is not much Jane could do except to spot the issue during the due diligence period under her contract to purchase the property, and then to either: (1) ask her seller to secure a written permissive use agreement from Joe, or quiet title against any claim Joe might make, either by court action or negotiated quitclaim deed; (2) ask her title company to insure against any such claim by Joe (hard to get, but possible); and/or (3) negotiate a reduction in the purchase price to offset the actual or potential existence of a prescriptive easement.

Copyright Dickenson Peatman & Fogarty at www.lexvini.com