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Adverse Possession and Prescriptive Easements Are Not The Same

In our prior post — Equitable Easements and “Innocence” — we covered a portion of the California Fifth District Court of Appeal’s opinion in Hansen v. Sandridge Partners, L.P.  For a description of the factual and procedural background of that case, please see the prior post.

In short, an encroacher (the Hansens) negligently planted pistachio trees on the “Disputed Land” — property owned by their neighbor (Sandridge Partners).  As covered in the prior post, the court of appeal rejected and reversed the trial court’s grant of an equitable easement because the encroachment was not “innocent.”

But the Hansen case also featured a second holding and valuable lesson, this one regarding the Hansens’ request for a prescriptive easement on the Disputed Land.

An easement is NOT an estate …

Before ruling on the Hansens’ request for a prescriptive easement, the court of appeal discussed the difference between an “estate” and an “easement.”  In the court’s words,

Interests in land can take several forms, including estates and easements.  An estate is an ownership interest in land that is, or may become, possessory.  In contrast, an easement is not a type of ownership, but rather an incorporeal interest in land’ which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another. … An easement is, by definition, less than the right of ownership.

(Internal quotes and cites omitted.)

The court confirmed that both estates and easements can be acquired through various means, including occupancy, otherwise known as “prescription.”  Acquiring an estate by prescription is called adverse possession.  Acquiring an easement by prescription is called a prescriptive easement.

… and prescriptive easements are NOT the same as adverse possession

To establish the elements for a prescriptive easement, a plaintiff must show use of the disputed property for the statutory period (five years), which use has been: (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.

To establish adverse possession of an estate, a plaintiff must show the same essential elements as above, plus an additional element (which is often not met) — payment of all taxes assessed against the disputed property during the five year period.

The taxes element makes it more difficult to establish adverse possession than a prescriptive easement.  This is appropriate, since a successful adverse possession plaintiff obtains ownership of the property (an estate), while a successful prescriptive easement plaintiff obtains merely the right to use the property.

The court warned that plaintiffs often attempt to “obtain the fruits of adverse possession under the guise of a prescriptive easement to avoid having to satisfy the tax element.”  To prevent such abuse, the court noted, any plaintiff seeking a prescriptive interest that is “so comprehensive as to supply the equivalent of an estate” must satisfy the elements of adverse possession (including payment of taxes), not merely the elements for a prescriptive easement.

No taxes, no dice

Applying these rules to the case at hand, the court held that even though the Hansens requested a “prescriptive easement” on the Disputed Land, they really sought adverse possession of an estate in the Disputed Land.  That is because the Hansens sought to use the property for their own farming purposes “to the exclusion of” Sandridge and all other persons, leaving Sandridge with no rights whatsoever to occupy or make any practical use of any portion of its property.

The court held that since the Hansens sought the practical equivalent of an estate, they needed to prove their payment of taxes for the Disptuted Land, which they could not.

Lesson

A plaintiff’s claim for a “prescriptive easement” might be construed as something else — an attempted adverse possession of an estate — if the relief would leave the owner with no practical rights to use the property.  In that event, the plaintiff will need to meet the taxes element in addition to the other elements.

As summarized by the court: “an interest in land that is functionally equivalent to ownership may be acquired by adverse possession, but not as a prescriptive easement.”

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