DECISION: The Court of Appeal ruled that the neighboring restaurant owner acquired a prescriptive easement by an open and notorious use that was hostile and adverse, continuous and uninterrupted for the five-year statutory period under a claim of right. It was not necessary that the neighbor believe the use of the parking lot was legally justified or that he had the right to use it, only that the use was without permission of the bank. The court’s opinion is set forth in full at the end of this e-mail.
ANALYSIS: This case is another important reminder to all landowners to be vigilant in observing whether there is a repetitive use of any portion of their property by persons who do not have express permission. If so, the use must be actually stopped, or express permission for the use must be granted (preferably in written form which is admissible in court) before the use continues for five years otherwise they may acquire the permanent legal right to the use. Alternatively a landowner can avoid prescriptive easements by a recorded notice in compliance with Civil Code §813 and by posting signs in compliance with Civil Code §1008 before the five year period has expired.