Concepts Definitions

Prescriptive Easement: A right to use another person’s property, similar to adverse possession, which can be acquired by open, notorious, continuous, and non-permissive (or hostile) use of the property for a statutory period, typically five years in California, sometimes including the payment of property taxes for the portion of land targeted.

Permissive Use: Use of another’s property with the owner’s explicit or implicit consent. Permissive use prevents the creation of a prescriptive easement because it negates the “hostile” or “non-permissive” requirement.

Adverse Possession: A method of acquiring title to real property by occupying it openly, continuously, and without the owner’s permission for a statutorily defined period, and often, by paying property taxes.

Elements of a Prescriptive Easement/Adverse Possession:

Open and Notorious: The use must be visible and obvious to the property owner.

Continuous and Uninterrupted: The use must occur without significant breaks for the entire statutory period, which is typically five years.

Non-Permissive/Hostile: The use must be without the owner’s permission and adverse to their interests.

Payment of Taxes: For adverse possession, and sometimes for prescriptive easements, the claimant must pay property taxes on the disputed area for the statutory period.

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