How to Obtain a Prescriptive Easement in California?

The decision in the recent case of Husain v. California Pacific Bank explains the elements of obtaining a prescriptive easement in California when both of the neighboring properties were previously owned by a single owner.

Syed Husain appealed from a judgment granting a prescriptive easement over portions of Husain’s property on Willow Avenue (Willow property), in a judgment in favor of California Pacific Bank, the owner of the adjacent property on El Camino Real (El Camino property).

For at least 50 years, until 2011, the properties were owned by a single owner, most recently by Hana Shiheiber, who acquired them in 2005. Shiheiber allowed tenants of the El Camino property to use portions of the Willow property for access, parking, and garbage removal, and as a garden.

Shiheiber defaulted on her mortgage, and in 2011, the properties were sold to lienholders, with the Willow property sold to JPMorgan Chase (JPMorgan). The tenants of the El Camino property continued to use portions of the Willow property as before.

In 2017, Husain acquired the Willow property and shortly thereafter filed a complaint against the Bank to quiet title. The Bank cross-complained for prescriptive easement.

Following a court trial, the court issued a statement of decision for the Bank, and Husain appealed the resulting judgment contenting that the use of the Willow property was permissive and remained permissive unless and until JPMorgan repudiated or revoked that permission.

The Court of Appeal rejected the contention, concluding that the decision of the trial court was correct.

The El Camino property is a rectangular parcel on which sits the Villa Tuscany Apartments (the Apartments), a large apartment building with an underground garage.

The Willow property, south of the El Camino property, is an L-shaped parcel on which there is a duplex, a concrete parking area, and a large undeveloped area in the rear.

In the 1960s, both properties were owned by Robert and Edith Carpenter. The Carpenters planned an addition to the Apartments, and in January 1964 they obtained a variance from the City of Burlingame that allowed four off-site parking spaces for the El Camino property to be located on the Willow property. 

The properties changed hands several times over the next decades, always remaining jointly owned. In 2005, both properties were acquired by Shiheiber, who allowed tenants of the Apartments to use the Willow property, including for access, parking, storage of garbage, and recreational purposes.

Shiheiber defaulted on the mortgages and ultimately both properties were sold via trustees’ sales. The Willow property to JPMorgan in May 2011, and the El Camino property to junior lienholder Bank in June.  

With the two trustee sales in 2011, JPMorgan and the Bank became the owners of the respective properties, which ownership remained the same until the Willow property was sold to Husain—a sale closed against the background that Husain was aware that the Bank claimed a prescriptive easement over the Willow property.

During his preliminary communications with real estate broker Coldwell Banker Real Estate LLC, Husain was presented with a “Visual Inspection Disclosure” that had an entire page devoted to usage issues at the Willow property and the Bank’s prescriptive easement claim. The disclosure noted that the tenants were parking on the Willow property and using the driveway to access the Apartments, and that the neighboring apartment building claims there is a prescriptive easement on the property’s lot for use by the tenants.  Husain signed the disclosure.

As negotiations continued, JPMorgan insisted that Husain sign a “Hold Harmless Agreement,” which he did, acknowledging that JPMorgan had informed him about various issues, including a non-conforming use, a parking space dispute, and pending lawsuits with the former owner involving ownership issues.

This agreement required Husain to indemnify and hold JPMorgan harmless from any claims or demands arising in any way out of any issues relating to the parking issue.  Husain’s signature on this agreement was notarized.

JPMorgan then provided Husain with a more detailed description of the easement claimed by the Bank, in an “Indemnification and Hold Harmless Agreement” that Husain signed, just before the close of escrow. The Indemnification and Hold Harmless Agreement contained an attachment titled “Potential Easement Issues,” and describes the Bank’s prescriptive easement claim over the Willow property, setting forth in detail the factual basis for that claim.

Against that background, Husain’s purchase of the Willow property closed.

When Shiheiber owned the properties, the tenants in the Apartments were allowed to use portions of the Willow property, which portions included the driveway, garbage bins, eight parking spaces, and a garden. Not only was this allowed, the fact was that the only access for vehicles to enter and exit the underground garage is via the driveway. Moreover, the sprinkler system for the garden on the Willow property was located in the garage of the Apartments.

Such use continued after the Bank purchased the El Camino property in June 2011, the Bank and the tenants using the Willow property for access, parking, garbage storage, and recreation, the last of which included maintaining a garden, a barbeque, and a picnic area—which use led to the litigation in this case.

The case came on for trial over three days, including a site visit by Judge Fineman. As she described it, the critical issue was whether the Bank has a prescriptive easement or some other right to use portions of the property now owned by Husain. These areas were: (1) a driveway; (2) four parking spaces which were identified in a variance . . . ; (3) four other parking spaces; (4) a garbage area; and (5) a garden.

The evidence was undisputed that at no time did the Bank ever request permission to use the Willow property.

Judge Fineman issued a final statement of decision that found that the continued use of the Willow property after the Bank’s acquisition of the El Camino property was constructive notice of adverse and hostile use sufficient to create a prescriptive easement. And, she concluded, the Bank and its tenants had a nonexclusive prescriptive easement over the use of the driveway, the eight parking spaces, the garbage area, and the garden.

Judgment was entered and Husain filed a timely appeal.

To establish a prescriptive easement the party claiming it must show use of the property that has been open, notorious, continuous, and adverse for an uninterrupted period of five years. 

An essential element necessary to the establishment of a prescriptive easement is visible, open, and notorious use sufficient to impart actual or constructive notice of the use to the owner of the servient tenement.

The concept of “adverse” is essentially synonymous with “hostile” and “under claim of right".  A claimant need not believe that his or her use is legally justified or expressly claim a right of use for the use to be adverse.

Instead, a claimant’s use is adverse to the owner if the use is made without any express or implied recognition of the owner’s property rights. In other words, a claimant’s use is adverse to the owner if it is wrongful and in defiance of the owner’s property rights.  To be adverse to the owner a claimant’s use must give rise to a cause of action by the owner against the claimant.

This ensures that a prescriptive easement can arise only if the owner had an opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so.

Adverse use means only that the claimant’s use of the property was made without the explicit or implicit permission of the landowner.

As the California Supreme Court put it, “Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.”

The burden of proof as to the elements of a prescriptive easement is on the one asserting the claim, i.e., the Bank, and the standard is clear and convincing evidence.

Judge Fineman concluded that based upon the law and equity and after weighing all the evidence presented, the Bank did not have to provide actual notice, but that constructive notice based upon its use of the property put the owner of the Willow property, JPMorgan, on notice for the five-year period from 2011–2016, was sufficient.

Where a possession commences with the consent of the owner, which is the presumption when one tenant in common is in sole possession, there can be no disseisin or adverse possession until there has been a disclaimer by the assertion of an adverse title, and notice thereof to the owner, either direct or to be inferred from notorious acts.  The burden is on the subservient co-tenant to be attentive to his/her rights.

There is no justification in law or equity to carve out an exception to the general rule to require actual and not constructive notice for property that was once under common ownership.

Because a person cannot have an easement on his or her own property, the time period during which the servient and dominant tenements are held in common ownership is not counted in calculating the prescriptive period.

The issue of “permission” did not arise until the Willow property was purchased by JPMorgan and the El Camino property by the Bank.  The facts established the Bank never requested nor received permission from JPMorgan to use the Willow property, and simply used the property as it did, a use that was open, notorious, continuous, and hostile for more than five years.

Whether a prescriptive easement exists is a question of fact to be decided after an examination of all the surrounding circumstances, including the relation of the parties, their conduct, the relative location of the properties, and other factors.

So, whether that question of fact is decided on conflicting facts, or even undisputed facts, that fact question was decided against Husain.

Where the evidence is susceptible to conflicting inferences, whether the use was permissive and a matter of neighborly accommodation, or whether the use of the property over a five-year period without asking permission adequately demonstrated a claim of right to do so, is a question of fact.

LESSONS:

1.         To establish a prescriptive easement, the party claiming it must show use of the property that has been open, notorious, continuous, and adverse for an uninterrupted period of five years. 

2.         A prescriptive easement can arise only if the owner had an opportunity to protect his or her rights to the property by taking legal action to prevent the wrongful use, yet failed to do so.

3.         Whether a prescriptive easement exists is a question of fact to be decided after an examination of all the surrounding circumstances, including the relation of the parties, their conduct, the relative location of the properties, and other factors.