Creating Prescriptive Easements

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Creating Prescriptive Easements

• by
• Bushore church real estate

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• All too often, a church neighbor will ask if they
  can install a gate between their property and
  that of the church parking lot so they can access
  their property for one thing or another, such as
  parking a boat or RV in their back yard. Most
  often however, the general public will use the
  church property as a short-cut when walking
  from one place or another. This article focusses
  on the later of the two and the possible creation
  of an easement.

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Easements

• At its root, an easement is a non-possessory
  interest in land wherein the holder of that right
  is permitted to make use of anothers land for a
  specific purpose. An easement may generally be
  created by an expressed written grant,
  implication, necessity, prescription or estopple.
  Assuming your church has not given anyone
  permission to traverse across its land, your
  neighbors are not landlocked, and it did not
  exist at some point in the past, prescriptive
  rights come into play.

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Prescriptive Rights

• California provides for the creation of a
  prescriptive easement by allowing those using
  your church property to prove that their use of
  your land was 1) open and notorious 2)
  continuous and uninterrupted for a period of five
  years and 3) hostile. Of particular importance
  is the fact that the user of your land need not
  be the only one to exclusively due so, but in
  this instance, the general public may be
  sufficient.

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Effects on the Property

• Naturally, whenever someone uses the property of
  another, be it a tenant, guest, or trespasser,
  the owner of the land holds at least some
  liability for the harm they may suffer. However,
  what is often overlooked is how that use of the
  land effects property values. As a general rule
  of thumb, once a prescriptive easement has been
  created, it cannot be terminated by merely
  blocking off access. Additional, constructing a
  new structure which adversely effects that
  easement becomes nearly impossible as the
  easement may not be interfered with once created.
  If and when the property is sold, the easement
  will have to be disclosed to the potential buyer
  who in turn, may determine that the easement
  interferes with their intended use of the
  property.

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Effects on the Property

• Naturally, whenever someone uses the property of
  another, be it a tenant, guest, or trespasser,
  the owner of the land holds at least some
  liability for the harm they may suffer. However,
  what is often overlooked is how that use of the
  land effects property values. As a general rule
  of thumb, once a prescriptive easement has been
  created, it cannot be terminated by merely
  blocking off access. Additional, constructing a
  new structure which adversely effects that
  easement becomes nearly impossible as the
  easement may not be interfered with once created.
  If and when the property is sold, the easement
  will have to be disclosed to the potential buyer
  who in turn, may determine that the easement
  interferes with their intended use of the
  property.

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Conclusion

• The church must be aware of and take action when
  it is first discovered that someone is using the
  church property without permission. If all else
  fails, the property owners only option that
  remains is to file a quiet title lawsuit to take
  back claim to the property within five years of
  the commencement of the adverse use. Otherwise,
  that right to claim the property in question can
  be lost.