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Prescriptive Easements

An easement is a non-possessory interest in land that gives the easement holder a right to use land possessed by another party. They are commonly created by express grant and can be court ordered (learn more about Equitable Easements here), but in some cases, can be created by prescription. The theory behind a prescriptive easement arises when a claimant seeks to create this use right based on past usage. It is similar in many respects to adverse possession; a difference being it is measured by use rather than possession. 

The claimant seeking to establish a prescriptive easement must show that the use of the other party’s property meets 4 criteria. The use must be:

  1. open and notorious;
  2. hostile and adverse to the true owner;
  3. under the claim of right;
  4. continuous for the statutory period.

To make understanding these elements easier, let’s take a look at a fact pattern adapted from a case (Felgenhauer v. Soni, CA Ct. of App. (2004)) where there was a claim for a prescriptive easement:

A restaurant sat adjacent to a bank. The bank owned a parking lot in-between a public road and the restaurant. Approximately every day for 10 years, a delivery truck, entering from the public road, crossed over the bank’s parking lot to make deliveries to the restaurant. The restaurant never asked the bank for permission. Sometime after, the bank put up a fence, blocking access to the parking lot from the public road. The restaurant sued to establish a prescriptive easement for the deliveries to continue. The court considered the four elements:

Open and Notorious

Open and notorious means that the use is visible and not kept hidden from the landowner, in such a way that a reasonable landowner would have been put on notice. In the case of the delivery truck, the use was apparent, and the bank had actual notice of the use. If instead of driving across the parking lot in broad daylight, the delivery truck only made deliveries at midnight, driving quietly with its headlights off, the open and notorious element would probably not be met. Something additional to note here is that actual notice is not required here. An obvious use of the landowner’s property can constitute implied notice.

Hostile and Adverse to the True Owner

Hostile and adverse essentially means that the claimant was acting without receiving permission from the landowner. As we will see, this has some overlap with the subsequent element. The use cannot be based upon courtesy, or neighborly accommodation, which is permissive in nature. The deliveries to the restaurant were made without the consent of the bank, and thus the use of the parking lot was antagonistic to the bank’s ownership, making it adverse to the bank.

Under the Claim of Right

Under a claim of right does not mean that the claimant has to actually believe that he has a legal right to use the property. Rather, it means that the claimant used the property without the owner’s permission. In the case at hand, the restaurant never asked permission to use the parking lot for deliveries, so the use was under a claim of right.

Continuous for the Statutory Period

All of the above elements have to be continuous throughout the statutory period. In California, that period is set at 5 years, but this varies by state. The use itself does not have to be constant and can be intermittent. Generally, the use is uninterrupted if the user utilizes the landowner’s property whenever needed. So, the delivery truck would not have to use the parking lot every single day, but if the parking lot was used when deliveries were made made, that would likely suffice, so long as the deliveries were not too infrequent.


We know that the delivery truck drove through the lot every other day for 10 years, without permission and in a way that was visible and apparent. Because of this, we know that the use was open and notorious, hostile and adverse to the true owner, under a claim of right, and continuous for the 5-year statutory period. Thus, in this case, it was found that a prescriptive easement was created.  If a property owner suspects that someone may be in the process of creating a prescriptive easement on his property, the property owner should consider contacting his or her attorney to evaluate what defenses may be available. 

*The information set forth above does not constitute legal advice and does not create an attorney/client relationship.