Creating a Prescriptive Easement

All too often, a church neighbor will ask if they can install a gate between their property and that of the church parking lot so they can access their property for one thing or another, such as parking a boat or RV in their back yard. Most often however, the general public will use the church property as a “short-cut” when walking from one place or another. This article focuses on the later of the two and the possible creation of an easement.

Easements:

At its root, an easement is a non-possessory interest in land wherein the holder of that right is permitted to make use of another’s land for a specific purpose. An easement may generally be created by an expressed written grant, implication, necessity, prescription or estopple. Assuming your church has not given anyone permission to traverse across its land, your neighbors are not landlocked, and it did not exist at some point in the past, prescriptive rights come into play.

The scope of an easement may evolve over time as to the manner, frequency, and intensity of its use. In general, the scope of an easement turns on the intent of the parties. The law usually presumes that the parties to an express or implied easement intended that the easement holder be entitled to do anything reasonably necessary for the full enjoyment of the easement.

Prescriptive Rights:

California provides for the creation of a prescriptive easement by allowing those using your church property to prove that their use of your land was: 1) open and notorious; 2) continuous and uninterrupted for a period of five years; and 3) hostile. Of particular importance is the fact that the user of your land need not be the only one to exclusively due so, but in this instance, the general public may be sufficient.

To make matters worse, the California Fourth District Court of Appeal made it clear in the case of Connelly v. Trabue (2012) 204 Cal. App. 4th 1154, that the burden is on the owner of the property, not the trespasser, to take swift legal action to determine whether a prescriptive easement has attached to the property. In other words, once a trespasser has met all the requirements to establish a prescriptive easement, the prescriptive easement automatically attaches to the property. The trespasser may, but is not required, to bring a lawsuit to perfect his or her claim of a prescriptive easement. Instead, it is the owner, not the trespasser, who must file a legal action within five years after the adverse possession by the trespasser commences, in order to claim the property back from the trespasser.

Effects on the Property:

Naturally, whenever someone uses the property of another, be it a tenant, guest, or trespasser, the owner of the land holds at least some liability for the harm they may suffer. However, what is often overlooked is how that use of the land effects property values. As a general rule of thumb, once a prescriptive easement has been created, it cannot be terminated by merely blocking off access. Additional, constructing a new structure which adversely effects that easement becomes nearly impossible as the easement may not be interfered with once created. If and when the property is sold, the easement will have to be disclosed to the potential buyer who in turn, may determine that the easement interferes with their intended use of the property.

Although the church will still own the land subject to the easement, its use of that portion may be limited because once created, the easement may not be hindered in such a manner which unreasonably interferes with its use.

Prevention:

First and foremost, post your property in accordance with California Civil Code §1008 which states:

“No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”

Although the above prevents future trespassers from creating a prescriptive easement across the church, it does nothing for those who have done so in the past. According to the California Court of Appeals, if all of the elements to obtain an easement by prescription have been met, the later posting of the land will not extinguish the easement.

By California Statute, there are four ways in which a prescriptive easement, once created, can be extinguished: 1) by the vesting of the right to the servitude and the right to the servient tenement in the same person; 2) by the destruction of the servient tenement; 3) by the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4) when the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.

Of those listed, the only real viable choice is the third which means the owner of the land must interfere with the act of ones crossing of the land in a manner which results in a physical change that permanently and materially prevents those from using the easement prior to the prescriptive rights vesting.

Take Caution:

Simple constructing a fence or other barrier to the trespass may not prevent a prescriptive easement from being created if someone simple climbs over or creates a passage through the obstacle. This is because at that point, the use has not actually been terminated.

Should the signs noted above be posted, one runs the risk of granting an implied permission to use the property as a “short-cut”. Additionally, should those sings be posted and later become damaged or removed, they must be replaced at least once a year.

Conclusion:

The church must be aware of and take action when it is first discovered that someone is using the church property without permission. If all else fails, the property owners only option that remains is to file a quiet title lawsuit to take back claim to the property within five years of the commencement of the adverse use. Otherwise, that right to claim the property in question can be lost.

Please see our other related articles


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Premise/Trespasser Liability
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.

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