Prescriptive Easement: Owner’s Possession Need Not Be Continuous

  The requirements for a prescriptive easement are that the plaintiff or its predecessors must have used the property for the statutory period of five years. Further, such use must have been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.

  One potential defense to an action for prescriptive easement is Civil Code section 741 which provides in pertinent part: “No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by forfeiture . . . or otherwise . . . .”

  Section 741 and early California Supreme Court case law confirms that the prescriptive period cannot run against a future interest, i.e., an owner that is not in present actual or constructive possession of the property. [See, Gartlan v. C.A. Hooper & Co. (1918) 177 Cal. 414, 170 P. 1115.] The reason for this is that actions for ejectment or trespass, which are the usual means of preventing an easement by prescription, require that the owner have a present possessory interest in the property sought to be protected.

  A landlord who has leased the property for a period of 20 years, for example, could therefore defeat a claim of prescriptive easement once possession was obtained from the lessee irrespective of whether the lessee could defeat the same claim. The reason is because the landlord is not in legal possession of the property until the lease expires or the landlord otherwise acquires a possessory interest. [See, Dieterich International Truck Sales, Inc. v. J.S. & J. Services, Inc.]

  Distinguished is the circumstance where a landlord has been in possession at any point during the adverse use. [King. v. Wu.] If at any point during the adverse use a landlord has been in possession, including constructively at the expiration of a renewable lease, the landlord could and should have taken action to interrupt such use. Therefore, the fact that a prescriptive right cannot arise against a landlord who has no possessory interest in the property during the period of adverse use does not implicate section 741 and the adverse claim, if proven by substantial evidence, is good against the landlord.

  There is no requirement that the owner’s or landlord’s possession be continuous during the 5-year statutory period: that requirement applies only to the party claiming the prescriptive easement.


  I consult with clients and accept cases involving easements, including prescriptive easements. For other types of cases I accept, please scroll my Home and My Practice pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude

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