Prescriptive Easements Time Frames

[ethanladen]

My question involves an easement in the state of california

When researching prescriptive easements in california, the property has to be used for five years. Can that be any five years? For instance if my neighbor can prove that she was using a portion of my property for 20 years, but hasnt used it 10 years, can they still sue for an easement?

specific to my situation, there is a fence that does not follow the property line. This fence has been this way for at least 30 years. I purchased the property in 1998. We had a licensed survey performed in 2006 that clearly showed the fenceline cut off about 25 sq feet of our property.

Because one of the conditions of prescriptive easement is that the use has to be without the owners permission, and i have known about the use for the last six years (i have essentially granted approval for use), does my knowledge over the most recent six years void the conditions for such an easement?

thanks,
ethan

[Mr. Knowitall]

What do you mean by "essentially"? Did you go to your neighbor, six years ago, and say "Your fence isn't on the property line, but I'll let you keep it there as long as you agree that it's on my property and you are making no claim against my ownership?" And then your neighbor said, "I agree"?

[ethanladen]

I said nothing to the owner of the property. My question is if my knowledge of the use constitutes permission, and if so, does the "permission" over the last six years negate the use prior to my knowledge (with respect to the 5 year use period)

By the way, the owner did not know the property wasnt hers until i pointed it out to her when we put in for a permit to construct a fence earlier this year.

[PandorasBox]

I would get a lawyer on this.

To my knowledge....so many years of open and obvious uses means they can claim the land as theirs under "Adverse Possession".

If the easement is Prescriptive, it means they need to use your land to access their property.....which does not sound to be the case.

[Mr. Knowitall]

If your neighbor is using your property without your permission, then the use is without permission. If you realize that your neighbor has been using your land for decades and do nothing, you should expect to fail in a later claim that you silently transformed their non-permissive use into a permissive use.

Your neighbor has a plausible claim that you and your predecessors in title have acquiesced to the boundary line established by the fence.