Property Owners Beware – Obligation Is On You To Prevent Prescriptive Easements

A persistent topic in real estate law is prescriptive easements, whereby one acquires the legal right to use the land of another without the owner’s permission. In the recent case of Connolly v. Trabue (204 Cal.App.4th. 1154)( 2012) the California Court of Appeal decided a dispute between neighbors concerning a prescriptive easement and the effect of significant delay by the party claiming the easement in asserting its rights.

The Dispute

In 1995 the Connollys bought two parcels of land in Humboldt County, which they used for cattle ranching purposes. By 1998, they had built a fence around these two parcels, which also enclosed a portion of an adjacent parcel, Lot 17. In 2003, the Connollys purchased Lot 17, then immediately sold it to Dobbs, with the agreement that the property line would be adjusted so that title to the fenced-in portion of Lot 17 would remain with the Connollys. However, the 2003 grant deed prepared by Dobbs did not specify that the subject portion of Lot 17 was excepted from the transfer, and the entirety of Lot 17 was transferred to Dobbs.

The Trabues bought Lot 17 in 2008, and a dispute soon arose concerning use of the fenced-in portion used by the Connollys. The Connollys claimed that notwithstanding that they had made no formal legal claim of an easement for over 10 years since their use of the subject property had begun, their right to use the area had already ripened into a prescriptive easement, as they had met all legal conditions, and the Trabues could therefore not prevent them from continuing their use of the subject area. The Trabues claimed the Connollys had waited too long to assert their easement rights, and, pursuant to the legal doctrine of laches, a prescriptive easement had not been established.

The Legal Framework

Under California law, a prescriptive easement is the right to use another’s real property acquired by open, notorious and continuous use of the property under claim of right and without the owner’s permission for a period of five years. Once these criteria are satisfied, an easement is established by operation of law, and no further action by the claimant is necessary. The burden is on the property owner to prevent such use of its land from ripening into an easement. If the property owner takes no action to stop the use of its land before the five year period has run, then a prescriptive easement may be established in the user’s favor.

“Laches” is an equitable doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. Laches addresses delay in the pursuit of a right when a party must assert that right in order to benefit from it.

The Court’s Decision

Reviewing the facts of the case the Court of Appeals determined that since at least 1998 the Connolly’s had used, and continued to use, the subject portion of Lot 17 for cattle ranching purposes. The Connolly’s use was not concealed and was at all times open, apparent, visible, and adverse to all others claiming a right to the subject portion of Lot 17. The Connollys regularly locked the gate leading into the subject portion of Parcel 17. The Connollys were never given permission by anyone to use the subject portion Lot 17 and no one ever interrupted their use.

The Court held, contrary to the Trabue’s argument, that the doctrine of laches did not apply to the Connolly’s claim of a prescriptive easement. There can be no undue delay under the doctrine of laches where a claimant is under no obligation to act, but instead acquires a prescriptive easement by operation of law. A claimant’s rights vest by operation of law at the moment the requisite conditions for a prescriptive easement have been established for the five year period; no further steps are required to establish the easement. By maintaining their use of the subject portion of Lot 17 and meeting the required criteria for a five year period, the Connollys were under no obligation to take further action to perfect their rights. Any delay by the Connollys in formally asserting their claim of easement is not pertinent to the establishment of the easement. The Trabues could therefore not legally prevent the Connollys from continuing their long-standing use of the area.

The Court’s decision in Connolly confirms that a property owner must be proactive and take steps to prevent a prescriptive easement from being established over its property by operation of law where the required conditions are present. While Connolly involved a rural setting, issues surrounding prescriptive easements are common in urban areas, and property owners should be aware of any use of their land that could ripen into an easement.

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, 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.

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