California Real Estate Salesperson Exam Practice - Question 51

Question

Permissive use of a road across real property would cause a prescriptive easement in

Selections

A. 5 years

B. 10 years if the user pays the taxes

C. 20 years

D. None of the above

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Answer: D

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5 Keys Summary

• A prescriptive easement requires the use of another party's property to be "hostile and adverse" or "non-permissive".

• Adverse use is defined as use conducted without license or explicit permission from the property owner.

• Permissive use, where the owner gives consent, negates the "hostile" or "adverse" requirement necessary to establish a prescriptive easement.

• Because permissive use negates a fundamental requirement, a prescriptive easement cannot be created, regardless of the length of time the use continues.

• If the use were non-permissive, the statutory period required for continuous and uninterrupted adverse use to establish a prescriptive easement is typically five years

Explanations

A prescriptive easement cannot be created through permissive use. One of the fundamental requirements for establishing a prescriptive easement (which is similar to adverse possession) is that the use of the property must be non-permissive, meaning it occurs without the owner's consent or against their wishes. If an owner gives permission for the use of their property, then the use is not considered "adverse" or "hostile," and thus, a prescriptive easement will not form, regardless of how long the use continues or whether taxes are paid. The typical statutory period in California for an adverse claim to mature, if it were non-permissive, is five years, often requiring the payment of property taxes for that period.

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.