Taking a prescriptive easement is similar to taking title to land by adverse possession. The elements of proof necessary to prove either a prescriptive easement or taking title by adverse possession vary from state to state. In California, the clearest difference between the two concepts is that in order to take title to property by adverse possession, the claimant must have paid taxes on the property for at least five years. What the claimant must prove is that his or her use of the neighbor’s property was, for a period of at least five years, (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.
The classic case of one property claiming a prescriptive easement over or title to a portion of a neighbor’s property is that of a long-standing fence erroneously thought by one or both of the landowners to be on the property line. The party gaining land will have used the land on that party’s side of the fence for many years, and will attempt to make the argument that because there has been continuous and exclusive use of that portion of the land, there should be an award of an exclusive easement.
Such an argument falls flat. This is because the courts have held that without additional proof, the mere existence of the fence is insufficient to create a prescriptive easement. This principle applies very strongly in cases involving residential property. How does one share a portion of the back yard with the neighbor? It doesn’t work.
A claimant may attempt to invoke another doctrine with respect to the placement of a fence described above. That argument would be that the predecessors in title of the present owners had to have made an agreement relocating the property line to be where the fence is built, or else the fence wouldn’t have been there for such a long time. Such an argument won’t succeed. This is because a claimant needs more evidence showing that prior owners of the property were uncertain as to the location of the property line, and that they agreed to accept the placement of the fence as the boundary line between the two properties. This doesn’t need to be written evidence, though. Perhaps there is another neighbor who heard the two owners discuss agreeing to the location of the boundary. Such testimony may be sufficient.
Each case where one is attempting to prove a prescriptive easement or adverse possession is of course different, if for no other reason because no two parcels of land are identical. Other factors which may come into play in these types of cases include whether the two properties were owned at one time by the same person, and whether one of the owners would be landlocked without an access easement. Another type of easement situation arises when a portion of a structure extends over the adjacent property. If the encroaching structure has been there for many years, the courts may very well find a way to decide that the only equitable decision is that of letting the structure remain. Perhaps the court would require the owner of the structure to pay the other property owner for the land under the encroachment.