Underneath California actual property regulation a prescriptive easement requires the trespasser displaying that they’ve used the property “for the statutory interval of 5 years, which use has been (1) open and infamous; (2) steady and uninterrupted; (3) hostile to the true proprietor; and (4) underneath declare of proper.” The way in which a property proprietor cuts off a attainable prescriptive easement is by submitting a go well with for trespass or ejectment. However an motion for trespass is designed to guard possessory –not essentially possession– pursuits in land from illegal interference. As the owner doesn’t have a proper to possession through the lease time period, he might not deliver an motion for trespass. The prescriptive proper doesn’t come up in opposition to an proprietor that had no possessory curiosity within the land through the five-year interval. What occurs when the proprietor has leased the property? The tenant has the best to possession, not the proprietor. It seems that, in California, even when the proprietor has a second of possession, similar to between leases, a prescriptive easement could also be created.
In King v Wu, a neighbor poured a concrete driveway partly encroaching on the neighboring property. The strip of driveway on the neighboring property (prescriptive strip) is roughly eight inches vast and 90 ft lengthy. A few years later the property struggling the trespass was bought, and the brand new house owners started setting up a metallic guardrail over the prescriptive strip. Three days later the Kings filed a criticism in search of to quiet title over the prescriptive strip.
The house owners raised one protection—that the property had been “constantly rented out,” and thus, as landlords, that they had by no means been in possession over a interval of 5 steady years, and couldn’t have filed an motion for trespass or ejectment throughout that point. The house owners had a number of successive leases with totally different tenants.
The courtroom disagreed with the protection. California regulation doesn’t require the precise house owners of the adversely used land to have been in steady possession for 5 years. A 1918 determination established that the place the lease expired yearly, and was yearly renewed throughout the complete interval of the plaintiff’s adversarial use, the owner as reversioner got here constructively into possession of his personal on the annual expiration of his tenant’s time period and previous to the annual renewal thereof, and therefore was able to train, and will have exercised, an proprietor’s proper to place an finish to an adversarial person of any portion of his property earlier than the identical ripened right into a title by way of lapse of time. Failing to do that for the statutory interval, he would lose that proper. (Gartlan v. C.A. Hooper & Co. (1918) 177 Cal. 414, 428.)
Thus, if the property was leased over numerous years—however not in a steady vogue— a 3rd occasion claimant might be able to assert a prescriptive easement over the owner’s property. “If at any level through the adversarial use an proprietor or a landlord has been in possession, together with constructively on the expiration of a renewable lease, she or he may and will have taken motion to interrupt such use.”
Right here, the house owners had been in precise possession for 2 years when there was no tenant, plus the remaining time the property was rented to sequence of tenants. The courtroom discovered that the house owners had been in precise possession throughout some vacancies they usually had constructive possession at finish of every lease.
The courtroom contrasted this with a choice during which the leasehold time period was for 49 years and wouldn’t expire till lengthy after the made its ruling. That proprietor didn’t have a proper to possession, and the trespass occurred doing the lease. It was his proper to possession sooner or later that was the priority. The courtroom discovered that the proprietor of the property didn’t have a reason behind motion to forestall a prescriptive easement. That courtroom defined that the curiosity which defendant sought to guard was wholly and primarily the best to possession. It’s that stick within the bundle of rights which provides the defendant the ability to forestall others from coming into his property—quare clausum fregit. (“Wherefore he broke the shut”. Motion for trespass in search of damages for the illegal entry upon one other’s land.) (Dieterich Internat. Truck Gross sales, Inc. v. J. S. & J. Companies, Inc. (1992) 3 Cal.App.4th 1601, 1610.)
What if the proprietor signed a brand new lease earlier than the outdated one expired, thus the property was constantly leased? That query has not been answered, however on condition that the courts solely require ‘constructive” possession (the authorized possession of an object, even when it was not in an individual’s direct bodily management), it could not matter.