Misconceptions About Prescriptive Easements

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Even Los Angeles Real Estate Lawyers Are Often Confused About What Constitutes A Prescriptive Easement

Laine Wagenseller, Business AttorneyCalifornia law is well-settled that prescriptive easements are not appropriate in garden-variety residential boundary disputes.  Case after case has affirmed the general rule:  the law accords determinative effect to the description of land contained in a deed.  And yet attorney after attorney raises the argument that a neighbor can use the property of an adjoining neighbor under the guise of a prescriptive easement.  Los Angeles real estate attorneys should keep these points in mind when analyzing a neighbor’s claim that they are entitled to use their neighbor’s property.

Case after case has held that exclusive prescriptive easement does not apply to a simple backyard dispute.  Silacci v. Abramson (1996) 45 Cal.App.4th 558; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093.

The General Rule Accords Determinative Legal Effect To The Deed.

We start with the simple idea, especially in an urban setting, that the law “accords determinative legal effect to the description of land contained in a deed.”  Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1308.

In other words each party purchased property according to the legal description set forth in the grant deed and as reflected by the boundaries set forth in the surveys.  The legal description describes the property purchased by each land owner.

The law accords “deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation.”  Id. at p. 1303 [explaining why the law has abandoned the agreed-boundary doctrine in cases where clear legal descriptions are available].

As noted by the court, “in more recent times, however, accurate surveys and verifiable recorded deeds are the rule.”  Id. at p. 1304.  The court noted in that case that “the law should not employ the agreed-boundary doctrine “to trump the boundary established by the legal records [citation omitted] and to dispossess an owner of his land when a legal means of establishing an accurate boundary lies quite readily and conveniently at hand.”  Id.

Real estate attorneys should note that in an urban setting like Los Angeles, the deeds with their legal descriptions are easily verifiable and surveyors can almost always establish the true boundary.

Prescriptive Easements

The Burden Of Proof To Establish An Easement By Prescription Is Clear And Convincing Evidence.

“[A] party seeking to establish a prescriptive easement has the burden of proof by clear and convincing evidence.”  Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310.

“The higher standard of proof demonstrates there is no policy favoring the establishment of prescriptive easements.”  Id.

Plaintiffs Cannot Get Adverse Possession Under The Guise Of A Prescriptive Easement

The bulk of prescriptive easement cases involve the reversal of a trial court’s grant of a prescriptive easement where that grant is functionally a grant of adverse possession.

The seminal case in this area—Mehdizadeh v. Mincer, supra.—involves two issues:  the agreed-boundary doctrine and prescriptive easement.  The court found that the granting of the prescriptive easement was in error and held that “[t]o affirm the creation of this novel ‘fencing easement’ would dispossess an unconsenting landowner of property while circumventing readily available, accurate legal descriptions.”  Mehdizadeh, supra., 46 Cal.App.4th at 1308.

In 1967 a previous owner had installed a chain link fence between his property and the adjacent property in Encino.  No one had a survey done and no one knew whether the fence represented the legal boundary.  One of the new owners eventually had a survey done and determined that “a fence dividing their property from that of Mehdizadeh should be located 10 feet down the slope from the original chain link fence.”  Id. at p. 1301.  They then installed a new fence near the boundary.

The “disputed property” between the two fences contained 10 trees and numerous shrubs.  Mehdizadeh “occasionally cared for the vegetation” and the sprinkler system was connected to his water supply.  He maintained and repaired that sprinkler system.  He also enjoyed the view of the disputed property and his dog used the disputed property.  Id. at p. 1301-2.

The construction of the new fence destroyed vegetation and sprinkler systems, for which Mehdizadeh sought damages.

The trial court ordered that the boundary be set at the location of the original fence pursuant to the agreed boundary doctrine.  The trial court also found that Mehdizadeh was entitled to a prescriptive easement.  The issue for the appellate court was whether the trial court erroneously imposed an agreed boundary and erroneously granted Mehdizadeh a prescriptive easement.  Id. at p. 1302.

Plaintiffs do not argue the agreed-boundary doctrine and it has largely fallen into disuse in urban settings where verifiable grant deeds and easily surveyable boundaries are common.  In any event there is no evidence that anyone agreed that the fence at issue was the result of an agreement arising from an uncertainty over the original boundary (as required).  See section I of the Mehdizadeh opinion.

Section 2 of the opinion deals with the prescriptive easement issue.

“The Mincers argue that the judgment erroneously granted Mehdizadeh an interest that amounts to adverse possession under the guise of a ‘prescriptive easement’ that excludes the Mincers from entering or making use of their land.  We agree.”  Id. at p. 1304-5.

California Law:  The Elements of Prescriptive Easements

“To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.”  Id. at p. 1305.

California Law:  The Elements of Adverse Possession

On the other hand, “[t]o establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.”  Id.

Mehdizadeh could not claim adverse possession of the disputed property because he did not pay taxes on it (because taxes are generally assessed based on the legal description of the property and not based on where someone may have located a fence or a hedge).  

Adverse possession would give the Plaintiffs title to the property.  “A successful claimant of a prescriptive easement, by contrast, gains not title but the right to make a specific use of someone else’s property.”  Id. [emphasis in original]. The majority of overruled prescriptive easement cases, including Mehdizadeh, note that the trial court “merged” the concepts of adverse possession and prescriptive easement.  “An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership.”  Id. at p. 1306 [emphasis in original].

There Is No “Exclusive” Easement In A Simple Back Yard Dispute

The Mehdizadeh court noted that “[t]he owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement.  The owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.”  Id. at p. 1307-8.  However, the trial court’s prescriptive easement left the Mincer’s “fenced off from the property subject to the easement, and we question whether they can use, occupy, or enjoy it in any meaningful way.  They have no access to the property.  The fence reduces the size and alters the shape of their lot, potentially creating problems with setbacks and building codes that could impede alterations to structures the Mincers might wish to make, and also potentially reducing the value or salability of their property.  The easement thus burdens the Mincers’ property heavily, while leaving the Mincers only a minimal right to use it—enjoying air, light and privacy rights.”  Id. at 1308.  The appellate court concluded that the grant of this easement was error.  Id.

The Silacci case also confirms the law.  Silacci v. Abramson (1996) 45 Cal.App.4th 558.  In Silacci a property owner placed a three foot high picket fence around some undeveloped land behind his back yard.  The appellate court held that given the undisputed facts, “resolution of this case becomes a question of law involving the difference between two legal concepts relating to rights in the land of another:  claim of title by adverse possession, and mere prescriptive use of another’s land.”  Silacci, supra, at p. 562.

“The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple back yard dispute like this one.  An easement, after all, is merely the right to use the land of another for a specific purpose—most often, the right to cross the land of another.”  Id. at 564.  “To permit Abramson to acquire possession of Silacci’s land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use.”  Id.

A real estate litigation attorney must look at whether a Plaintiffs’ lawsuit seeks an “exclusive” easement.  In Silacci the trial court expressed the dominant view—“Clearly, the privately enclosed yard area of a home does not lend itself to shared use.”  Id. at p. 561 [Unfortunately, the trial court then proceeded to award the property to the neighbor, which led to the finding of error and reversal]. 

In Harrison v. Welch (2004) 116 Cal.App.4th 1084 even the defendant conceded that “the ability of a court to grant an exclusive-use prescriptive easement to, in effect, extend a residential yard has largely been negated.  She argues, however, that she “is not seeking an exclusive easement but only a non-exclusive one.”  The court then engaged in a lengthy analysis to show why prescriptive easements “will not be granted in a case (like this) involving a garden-variety residential boundary encroachment.”  Id. at p. 1093.

The Harrison court looked at several cases, including Raab v. Casper, Silacci v. Abramson and Mehdizadeh v. Mincer.  In Raab v. Casper (1975) 51 Cal.App.3d 866, “[D]efendants could not acquire a prescriptive easement to maintain part of their yard on the plaintiffs’ property.”  “[A]n estate entitles the owner to the exclusive occupation of a portion of the earth’s surface….”  “Although adroitly phrased to avoid the language of a grant of title, the last quoted clause was undoubtedly designed to give defendants unlimited use of the yard around their home.  Defendants doubtless did not intend plaintiffs, owners of the nominal servient tenement, to picnic, camp or dig a well in their yard.  They doubtless did not intend to own a house on one side of the boundary with an unmarketable yard on the other.  The findings and judgment were designed to exclude plaintiffs from defendants’ domestic establishment, employing the nomenclature of easement but designed to create the practice equivalent of an estate.  Achievement of that objective required proof and findings of the elements of adverse possession, not prescriptive use.”  Harrison, supra., at 1090-1091 [In Raab the grant of prescriptive easement was reversed].

In Harrison the encroaching party (Welch) argued that most exclusive prescriptive easement cases involve structural improvements (such as a fence or building) while her claim of prescriptive easement for landscaping “is not exclusive because there are no ‘physical’ or ‘practical’ barriers excluding the Harrisons from the landscaped area, as there were in Silacci and Mehdizadeh.”  Id. at p. 1094.  The court rejected that argument, noting that even Welch condedes that Raab had no such barrier.

The court also explained that the encroaching party deprives the other owner of “what other use to make of the [disputed] area” on his or her own property.  Id.  “Granted the planter boxes and trees are arguably an attractive border for both lots and [the] Harrison are not physically excluded from those portions of the encroachment area, but such facts do not make the encroaching use any less exclusive.  It is the exclusivity of the use of the surface of the land in the encroachment area that is determinative, and the landscaping scheme of Welch has essentially co-opted the encroachment area to an exclusive use designed by Welch.”  Id.

Prescriptive Easements: Seek Out The Advice Of An Experienced Los Angeles Real Estate Lawyer

The lesson is clear:  the law of prescriptive easement, and how it interplays with the law of adverse possession, is a complicated area.  Disputes in California between neighbors over boundary lines and the use of property require an experienced real estate attorney who has handled these types of issues and is conversant with the extensive law touching upon these points.  But a general rule of thumb to use as a starting point is that boundaries are established by a survey based on the legal description of the property.  Anyone seeking to alter property rights based on fences, hedges, or use usually has a tough road ahead.

Los Angeles real estate litigation attorney Laine T. Wagenseller is the founder of Wagenseller Law Firm in downtown Los Angeles.  Wagenseller Law Firm handles real property disputes, including boundary and easement cases throughout Southern California.  For more information, please contact us at (213) 805-7445 or

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