Hostile Use of Another’s Property & Prescriptive Easements

| Lindsay Petrone

A recent case provides further insight into what is considered “hostile” or “adverse” with respect to obtaining a prescriptive easement right.  A prescriptive easement is where one acquires a right to use another’s property, not by express agreement, but through the use of another’s property without permission.  More specifically, to establish a prescriptive easement, the party claiming it must show use of another’s property that has been open, notorious, continuous and adverse for an uninterrupted period of five years.  Whether the use is “hostile” or is merely a matter of neighborly accommodation is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.

In Husain v California Pacific Bank, the Court of Appeal analyzed whether a use can be considered “adverse” through hostile acts alone (rather than actual notice), particularly in the context where permission was impliedly granted to the user by the prior owner of the burdened property.  21 Cal. Daily Op. Serve. 2198 (Filed March 9, 2021).  In Husain, the tenants from one property (“Property A”) were allowed to use the parking spaces, garden, driveway and garbage area of another property (“Property B”) when Property A and Property B were owned by the same party.  In 2011, the properties were sold to two different owners and common ownership was severed.  After such sale, the tenants of Property A continued to use the above-referenced areas of Property B, without formally advising the new owner of Property B of such use or seeking its permission.  Property A’s use was consistent and frequent and included maintaining and improving the portions of Property B used by Property A. Husain purchased Property B in 2017 and eventually sued to quiet title of the affected areas of Property B.  Property A counter-sued for, amongst other things, a prescriptive easement as to its use of the parking spaces, garden, driveway and garbage area of Property B.

Husain argued that because the use was permissive when the properties were under common ownership, such permission did not terminate simply because the property changed hands.  In other words, because permission was granted by the original owner and never repudiated by the subsequent owner of Property B, there was never any “hostile” use by Property A triggering the five-year clock to establish the prescriptive easement.  While express repudiation is required to make a formerly permissive use “hostile”, the Court in Husain distinguished this argument because the properties were previously under common ownership.  There can be no adverse use during the time of common ownership because one cannot obtain an easement in one’s own land.  Permission would have to have been given or withheld after the properties were transferred to two separate owners in 2011.  Here, the Court found that Property A’s continued use of the affected areas of Property B after the sale without seeking permission put Property B on notice that Property A’s use was adverse to Property B.  As such, once the five-year time period elapsed without any change in status, Property A acquired a prescriptive easement to use such portions of Property B.

The Husain case shows that open and continuous use can be considered “adverse and hostile”, even if it was once pursuant to a neighborly accommodation.  One should look at the history of the affected properties and review the set of facts at issue to determine whether a use was hostile or with permission.

 

Authored by Reuben, Junius & Rose, LLP Attorney Lindsay Petrone.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Easement Limitations – Recent Clarifications

| Lindsay Petrone

What happens when an easement agreement does not specifically state all of the purposes for which it may be used?  How do we know what the parties intended?  If not specifically stated, is the scope of the easement based upon its historical use or a reasonable use?  A recent case of Zissler v. Saville addressed these issues and confirmed what a “bona fide purchaser” may be subject to due to a course of conduct by the parties.  (29 Cal.App.5th 630 (2018)).

In Zissler, two neighbors brought actions against the other to confirm the scope of a recorded easement affecting both of their properties.  The easement provided “Grantee access, ingress and egress to vehicles and pedestrians over Grantor’s real property to Grantee’s real property.”  The easement further specified the exact dimensions of the easement area for which such use rights existed.  The owner of the property burdened by the easement (Zissler) alleged that the easement was always used solely for landscaping purposes regardless of the language of the easement and should be limited to such use on an ongoing basis.  The new owner of the property which benefited from the easement (Saville) argued that the easement clearly provided for access, ingress and egress and Saville had purchased the property relying on such right for construction of his home.  Since he had recently purchased the property, Saville did not have a reason to know of this landscaping use limitation based upon the plain language of the easement.

The Court held that an easement for a broad grant of right of way use is limited only by its reasonable use based upon the scope set forth in the written agreement and not its historical use through the parties’ course of conduct.  They found that the easement was specific enough in stating the particular uses and the particular area burdened.  The Court noted that if the easement had been more general without the specifications of particular uses and a set easement area then the scope of the easement could have been limited to its historical use and not what may be reasonable based upon the plain language.  In its analysis the Court considered evidence from the prior owner of the benefited property (Saville’s Property) stating that the parties intended the easement only for landscaping purposes.  The Court found, however, that the relevant intent of the parties is evidenced by the written words of the parties and not either party’s subjective intent.

This case also discusses the issue of easement analysis in the context of a “bona fide purchaser” since Saville was a recent purchaser of the benefited property.   A “bona fide purchaser” is one who makes a payment of value for property, in good faith and without actual or constructive notice of another’s rights to that property.  The Court found Saville met the first two requirements and inquired as to whether he had actual or constructive notice of the landscaping limitation of the easement scope based on the fact that Saville had been notified by the seller of the benefited property that the easement had been used for gardening.  The Court found that such statement was not, on its own, knowledge of any limitation since the prior owner did not state that landscaping was the only permissible use of the easement, only that it had been used that way in the past.  Without any further knowledge of the limitation, the Court found the easement language to be express and unambiguous for which Saville, as a “bona fide purchaser”, could reasonably rely.

The Zissler case highlights that although historical use can be an important factor in cases with general easements, the relevant analysis with express and unambiguous easement agreements is the reasonable use based upon the plain language.  If an easement document is not explicit with regard to scope, the court may look to the parties’ historical course of conduct to further define and possibly limit its permitted uses.  It seems an additional factor considered here in finding for reasonable use rather than historical use is because a “bona fide purchaser” was involved in the dispute.  The Court found that as long as such agreement is fairly express and unambiguous in its terms, if a party purchases a property without specific knowledge of easement limitations attributable to historical course of conduct by the parties, the purchaser can reasonably rely on the plain language of the easement for its scope.  This implies that if this dispute was between the original parties to the easement, the Court may have considered historical use in its analysis of scope, although the case was silent on that issue.

 

Authored by Reuben, Junius & Rose, LLP  Attorney Lindsay Petrone

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.