Mitigating Adverse Possession & Prescriptive Easement Claims

Easements can significantly affect property rights, whether you are a landowner, a prospective buyer, or a real estate developer. In California, Civil Code Sections 813 and 1008 play a pivotal role in understanding and mitigating claims of prescriptive easements and adverse possession, reducing the risk of unintended property loss. This article will provide a brief overview of these sections, explaining their implications for property usage and rights in California. Specifically, it delves into how these laws can be utilized to protect against claims of adverse possession, ensuring that landowners can safeguard their property interests effectively.

Prescriptive Easements

In California, to establish the elements of a prescriptive easement, a claimant must present clear evidence of use of the property, for the statutory period of five years, which use has been:  (1) open and notorious; (2) continuous and uninterrupted for a period of five years; (3) hostile or adverse to the true owner; and (4) under a claim of right.  (28 Cal. Jur. 3d Easements and Licenses § 39.)

The element to note here is in subsection (3), “hostile or adverse to the true owner”. By providing consent via Civil Code Sections 813 and 1008, use by would be easement holders/adverse possession claimants is no longer hostile.

Adverse Possession Claims

Similar to a prescriptive easement, adverse possession requires: (a) an actual, open and notorious occupation of the property of another; (b) that  is hostile; (c) under a claim or right/color of title; (d) which is continuous and uninterrupted for five years; and (e) coupled with the payment of taxes.  “Adverse possession differs from prescription, which consists of acquiring a right (such as an easement) after lapse of time by use.” (See Thomas v. England (1886) 71 C. 456, 458, 12 P. 491.)

The Implication of Permission

A claim (of adverse possession) like a claim for a prescriptive easement, must be adverse to that of the true owner. If the owner permits the person to use the land, the possession is not adverse. (Southern Pac. Co. v. San Francisco (1964) 62 C.2d 50, 56, 41 C.R. 79, 396 P.2d 383 [where use in inception is permissive, there cannot be adverse possession without clear actual notice to owner of adverse nature of subsequent possession].)

Again, “[a] prescriptive right cannot be acquired if the use is with permission of the owner of the land over which it is claimed unless the permission or license is repudiated and such repudiation is brought to the knowledge of the owner of the servient tenement.” (28 Cal. Jur. 3d Easements and Licenses, supra, at § 44.)

This brings us to Civil Code Sections 813 and 1008.

California Civil Code Section 813: Easements for Limited Use

California Civil Code Section 813 provides that:  “The holder of record title to land may record in the office of the recorder of any county in which any part of the land is situated, a description of said land and a notice reading substantially as follows: “The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code.”  (Civ. Code, § 813.)

Civil Code Section 813 addresses the ability of a property owner to grant permission to use their land in a way that does not constitute a transfer of ownership (see example notice here). This section is particularly relevant for property owners who wish to allow non-owners to use their land without risking the creation of a permanent easement or a claim of adverse possession. 

Key Points of Section 813:

• Permission-based Use: Landowners can permit others to use their land for specific purposes without relinquishing ownership.

• Revocable at Will: The permission granted under Section 813 is revocable, meaning the landowner can withdraw it at any time, thereby preventing the user from claiming a permanent right to the land.

This arrangement is beneficial for both parties as it allows usage of the land while protecting the owner's rights, making it ideal for temporary or short-term agreements.

California Civil Code Section 1008: Preventing Prescriptive Easements

California Civil Code Section 1008 provides that:  “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.”  (Civ. Code, § 1008.)

Like Section 813, Civil Code Section 1008 provides a safeguard for landowners against the unintentional creation of easements through prolonged unauthorized use of their property. This section is crucial in the context of prescriptive easements, which can arise when someone uses land "openly and notoriously" without the owner's permission for a period of at least five years.

By granting this limited consent, the owner can defeat any claim of “adverse use,” as required to establish a prescriptive easement.

Key Points of Section 1008:

• Preventing Involuntary Easements: Section 1008 ensures that use of property under conditional, revocable permission cannot lead to the establishment of a prescriptive easement.

• Protection of Property Rights: This section helps property owners maintain control over their land by clarifying that permission negates the "hostility" requirement necessary for a prescriptive easement.

California Civil Code Sections 813 and 1008 play significant roles in managing and defining property rights and uses. Whether you're dealing with temporary permissions or concerns about prescriptive easements, understanding these laws can help navigate the complexities of real estate and property law effectively. For further guidance, consulting with a knowledgeable real estate attorney can provide tailored advice and ensure compliance with California law.