Prescription Easement

What is the name of your state? California... My property is in a development that has a flag lot running along side my property. Three years ago two houses were built off of the flag road. The rear property road veers ten feet onto my property because there was large tree on the flag property blocking a straight shot and keeping the road on the right property. I want this problem corrected. The developer says that five years has passed, and time has run out. I bought the property in september of 2000. The flag road was put in in 2001, and the houses were never occupied until 2002. I was sold the property showing a straight line on that side of the property, with no curved road along side for the flag lot. I believe California Prescription Law states that the road would have to have been used continually for five years for the flag lots to have legal title. Can your please help me?

There are three standard legal doctrines to resolve boundary disputes. The adverse possession theory seeking full title and the prescriptive easement theory share four requirements:

the claimant in possession who is arguing against the holder of record title must prove possession 1) for five consecutive years by claimant or predecessor owners, 2) in a way that is open and notorious, 3) under a claim of title, and 4) in a way that is hostile to the record title owner. There is a fifth requirement, payment of all taxes for five consecutive years, for adverse possession, but not for a prescriptive easement.

Since the county assesses taxes by record title, it is unusual for the person not holding record title to be able to show such tax payment. Therefore, the person in possession usually used prescriptive easement theory, rather than trying to establish ownership by adverse possession.

The recent cases of Silacci v. Adamson and Mehdizadeh v. Mincer make it much more difficult to prove an "exclusive" prescriptive easement where the claimant argues they are the only persons entitled to use the disputed land. (If a common easement between two neighbors, or for the benefit of a large number of parcels, is at issue, the Silacci and Mehdizadeh cases do not apply.)

The recent cases said that an exclusive easement really amounts to the same thing as full title so that payment of taxes for five years is also required to establish an exclusive prescriptive easement.

If you want to stop the process of prescriptive easement, simply block the road. Stanford does this each and every year to stop the process for streets passing through their campus.

But, before you do anything, please contact a local real estate attorney to write a cease and desist letter.

Writer, what does your current survey show?