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Prescriptive Easement and the Period of Permissive Use

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On March 9, 2021, the California Court of Appeal issued an opinion in Husain v. California Pacific Bank.  In this case, Husain fought a finding of prescriptive easement on his property by challenging the adversity requirement.  Husain argued that the alleged use was actually permissive rather than adverse and that any permissive use remained permissive unless and until the other party “unequivocally revoked or repudiated” the permission.

The court, noting that the two parcels had been commonly owned in the past, held that so long as the entire tract remained under one owner there could be no such thing as a dominant and servient tenement between different portions of the tract and therefore there could be no permissive use during the period when there was only one owner.  Therefore, the prescriptive period could not begin running until the parties were owned by separate owners.

The Law of Prescriptive Easement

To establish prescriptive easement the party claiming it must show use of the property that has been “open, notorious, continuous, and adverse for an uninterrupted period of five years.”  “An essential element necessary to the establishment of a prescriptive easement is visible, open, and notorious use sufficient to impart actual or constructive notice of the use to the owner of the servient tenement.”

What Is An Adverse Use?

The Court of Appeal discusses various definitions of “adverse” use.  Adverse is “essentially synonymous with ‘hostile’ and ‘under claim of right’.  A claimant need not believe that his or her use is legally justified or expressly claim a right of use for the use to be adverse.  Instead, a claimant’s use is adverse to the owner if the use is made without any express or implied recognition of the owner’s property rights.  In other words, a claimant’s use is adverse to the owner if it is wrongful and in defiance of the owner’s property rights.

The court explains that this requirement is intended to ensure that prescriptive easement could only arise if the owner had the opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so.

Another division of the Court of Appeal explained that “adverse use” means only that the claimant’s use of the property was made without the explicit or implicit permission of the landowner.

Whether a use if adverse is a question of fact for the trier of fact—the court or a jury.

The Husain Case

In the Husain case two adjacent properties were commonly owned for many years as far back as the 1960s.  One property had an apartment building while the other a duplex.  In 2011 the owner of both parcels lost the properties to foreclosure, with two different banks taking ownership.  One property was later sold to Husain.

In November 2017 Husain filed a complaint to quiet title against the Bank which owned the neighboring property.  The Bank cross-complained for prescriptive easement.  A trial court conducted a three-day trial and included a site visit by the judge.

The areas at issue included (1) a driveway, (2) eight parking spaces, (3) a garbage area, and (4) a garden.  The testimony at trial showed that tenants used the driveway (which was actually the only way of accessing the underground parking) and parked in the parking spaces consistently and frequently.  The tenants also used the garbage area as did the garbage trucks which collected trash two times a week for the entire five-year period.  Not only did the tenants frequently use the garden, but the irrigation controls were actually located in the neighboring garage.  The Bank paid for extensive planting and a regular gardener.

The trial court judge ruled in favor of the Bank in which she noted that the continued use of Husain’s property after the Bank bought the neighboring land was “constructive notice of adverse and hostile use sufficient to create a prescriptive easement.”  The Bank and its tenants have a non-exclusive prescriptive easement over the use of the driveway, the eight parking spaces, the garbage area and the garden.

Husain Argues That Use Was Not Adverse

Husain’s appeal took a novel approach.  Husain did not challenge the court’s finding of facts.  And Husain did not allege that the court abused its discretion in reaching its ruling.  Instead Husain sought a de novo review of what he contends is a legal question:  whether the Bank could establish the adverse use requirement if permission had not been unequivocally revoked or repudiated.

The argument was predicated on the basis that before the Bank acquired its property, the use of that property by the tenants of the other property was permissive and that such use remained permissive unless and until the Bank repudiated or revoked that permission.

Husain cites to three cases for the proposition that where use of a property begins permissively, the continuation of that use remains permissive for purposes of adverse possession until the permission is clearly and unequivocally repudiated.  Permission does not terminate simply because the property changed hands, even across multiple owners.  “Clear, express repudiation is required to make a formerly permissive use hostile.”

The Trial Court Distinguishes:  Not When The Properties Were Commonly Owned

California’s law of easements begins with the proposition that a person cannot have an easement on his or her own property.  This rule proceeds from the rationale that a person does not need an easement in his or her own land because the owner already possesses a right to all of the uses of an easement within the general right of fee ownership.  “So long as the entire tract…remained in one ownership there could be no such thing as a dominant and servient tenement between different portions of the tract.”

Therefore, because a person cannot have prescriptive easement on his own property, the time period during which the servient and dominant tenements are held in common ownership is not counted in calculating the prescriptive period.

If there could be no permissive use during the time of single ownership, then there would be no requirement that such alleged permission be revoked. 

Citing to an Arizona case, the court noted that there was no evidence of permission once the parcels were owned separately.  In the Husain case a prior owner had actually alleged during the foreclosure proceedings that the Bank had trespassed, which the court noted meant the prior owner had revoked any possible permission.  Moreover, the evidence in the case established that the Bank never requested or received permission from Husain or the bank which owned it before.  The Bank and its tenants simply used the property—a use that was open, notorious, continuous, and hostile for more than five years.

The Court of Appeal affirmed the trial court and the prescriptive easement in favor of the Bank and its tenants.

Lessons For Real Estate Attorneys Who Deal With Prescriptive Easement

Real estate attorneys who litigate easement lawsuits in Los Angeles and Southern California know that the adversity requirement in a prescriptive easement can be complicated.  There are certain facts in this case that made Husain’s case even more difficult than the legal issues reveal.  Husain bought the property with a disclosure by the selling bank that the neighbor Bank claimed a prescriptive easement.  The Visual Inspection Disclosure by the realtor devoted an entire page to the usage issues and the Bank’s prescriptive easement claim.  Husain signed a Hold Harmless Agreement and an Indemnification and Hold Harmless Agreement dealing with the potential easement issues.  Moreover, with the driveway being the only access to the underground parking and an irrigation system based on the Bank’s property that irrigated the well-developed garden, Husain faced an uphill battle from the very beginning.

The lesson for parties who are not experienced real estate attorneys is the same.  Easement cases are difficult cases and involved complicated legal requirements.  It is important to address these issues with a real estate attorney before a potential five-year period passes in order to fully protect your rights.

Los Angeles real estate attorney Laine T. Wagenseller is the founder of Wagenseller Law Firm and specializes in complex real estate litigation.  The real estate attorneys at Wagenseller Law Firm have experience handling numerous easement cases between adjoining properties. For more information call (213) 805-7445 or contact us.

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