Prescriptive Easements and Adverse Possession

[Sgann723]

My question involves real estate located in the State of: California

My husband and I purchased our home almost 4 years ago. We purchased our home from a lady that had lived there for well over 15 plus years. The home next door was owned by an older lady who lived in the home since she was a child. The lady next door since has sold her home which was purchased by our current neighbor. Our current neighbor is doing a lot split to build another home on the property. A survey was done by him, and the outcome was that his property line point comes within 3 feet of the side of our garage which serves as a walkway to our front door. We then ordered a survey as well and his findings are correct. However, there is a fence on this piece of land (maybe about 6 feet) that gives the appearance that it is part of our property as the landscaping has been maintained by us and the previous owner, which is why when we purchased the home we had no clue that we were using a portion of his property as ingress/egress to the front of our home. Our neighbor has since filed a "Notice of Consent to Use Land", which is revocable. We are concerned that one day he will revoke the consent that will give us all but 3 fee access to our front door.

Does this sound like a case of a Prescriptive Easement or Adverse Possession scenario? We have neighbors that have been living in the neiborhood for 25 years and have said that the fence has been up for at least 10 years.

[aaron]

Here's some California authority:

In an action to quiet title based on adverse possession the burden is upon the claimant to prove every necessary element: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner's title. (3) The holder must claim the property as his own, under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all the taxes levied and assessed upon the property during the period.

To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of 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.