Easements and Property Dispute Resolution

The Right to Limited Use of Another’s Property

The use of easements is common, often laid out when a subdivision was created, which allows another party the right to use a portion of that property. Common examples of easements involve public utility or power lines, phone lines, underground pipes, and storm drains. An easement owner is entitled to a limited use or enjoyment of another’s land. A prescriptive easement is an easement that is earned by regular use. They are not purchased, negotiated, or granted. A prescriptive easement may offer a solution to a boundary dispute.

If you find yourself in the position of needing an easement or disputing an easement, DiJulio Law Group can assist you.

There are various types of easements used to address the many property access problems that arise.

Prescriptive Easements

A prescriptive easements may be considered as the acquisition of an easement by adverse possession or squatter’s rights. For example, if a property owner built a fence ten years ago and the owner of the adjoining property has now determined that the fence is several feet past the actual boundary line and decides to contest, a prescriptive easement may be sought that allows the fence to remain. A prescriptive easement is simply a right to use property, the user does not gain title to the land. A prescriptive easement involves only limited use of a property, for example a pathway or driveway. Payment of property taxes is not required.

Other Types of Easements

An easement in gross involves only property, and the rights of other owners are not considered. For example, a public utility line easement would be an easement in gross and would be recorded in the public records. If for any reason the title insurer fails to disclose a properly recorded easement in gross, and which then causes a problem later, then the title insurer must either pay you the diminished value of your property, or have the easement moved.

An example of an easement appurtenant would be an easement allowing you to drive over your neighbor’s property to in order to reach your property. This situation occurs in so-called “flagpole” lots that have no direct access to public roads. To create an easement appurtenant by necessity, the owner of the landlocked parcel must be able to prove in court that there was common ownership with one of the joining parcels that has public access.

Easements come in many forms, from view easements to implied easements to easements created by deed. Common concerns with existing easements include determining if there are options to have it removed. Seeking a prescriptive easement to resolve a boundary dispute is another common concern. All easement disputes, concerns, or questions are best dealt with by a qualified real estate and property law attorney.

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An Easement is the right to use somene else’s land. A prescriptive easement is a right acquired by long term use.

The elements for adverse possession and a prescriptive easement are identical except for the fourth element- the payment of taxes. (Sulivan v. Balestrieri (1956) 142 Cal.App.2d 332 [298 P.2d 688].)

To acquire title by prescriptive easement or by adverse possession, the claimant must establish: (a) hostile acts to the true owner’s title; (b) actual, open, and notorious occupancy of the land; c) possession under a claim of right or a color of title; (d) continuous and uninterrupted possession for five years; and (e) payment of all taxes levied and assessed for the possession period. (Safwenberg v. Marquez (1975) 50 Cal.App.3d 301 [123 Cal.Rptr. 405.)

One party “Mover” moved a fence has been in place for 40 years because a recent survey indicated that a portion of land on the other side of the fence (” V”) belonged to Mover. (the “Disputed Property.)

Hostile Possession and Claim of Right.

When the V purchased their home, the fence made the Disputed Property appear to belong to the V, they were told by the real estate broker that the Disputed Property was their property. V have watered, improved and maintained the Disputed Property as their own for more than 20 years. As a result, The V treated the Disputed Property as theirs, creating the necessary hostile intent to possess it.

Actual Open and Notorious.

There is no question that The V’s possession of the Disputed Property was open and notorious because their possession by way of various improvements was clearly visible to A.

Claim of Right.

At all times, the V’s have fenced the Disputed Property and treated it as their own,

excluding A under a claim of right.

Possession for Five Years.

The use of the Disputed Property began in the 60’s and has continued to the present date by all owners of the V property, until last month when A moved the fence. Thus, the five years is easily met.

These Elements are enough for a prescriptive easement to use A’s property in the future.

For more information contact David DiJuliomailto:rdj@dijuliolaw.com.

DiJulio Law Group: Los Angeles real estate attorneys with more than 35 years of experience. Call 888-519-1613 or emal rdj@dijuliolaw.com.

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