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Too late to sue for Prescriptive Easement?

White Water, CA |

My neighbor is now suing me for a Prescriptive Easement for an access road across my property that he claims was perfected between 1995 and 2000 (the required five year period). However, I have found the 2011 California Code of Civil Procedure; PART 2. OF CIVIL ACTIONS [307 - 1062.20]; CHAPTER 2. "The Time of Commencing Actions for the Recovery of Real Property"; Section 315; that seems to indicate this civil action should have been brought within 10 years of his claimed easement (2000). In 2001 I purchased this parcel and granted the same neighbor permission to use the access road. He now wants to go back in time to claim an easement. More than 10 years have passed since his hostile and notorious use, so the suit should be nullified. Am I correct?

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Attorney answers 1


You might be successful on demurrer. However, suits regarding easements are extremely fact dependent and equitable principles come into play. Permissive use will negate a claim of prescriptive use. However, if the neighbor's use is different from that granted the neighbor might still be able to establish an easement by prescription based upon the new and different use.

A lot will depend on the grant and whether it is written. A thorough review of the exact facts with a local real estate attorney is in order as well as representation. While it is unlikely insurance will cover this claim, you should present it to any carrier that might be liable including homeowners and/or title. Good luck.

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The permission I granted to the neighbor in 2001 was verbal, nothing in writing. It was simply permission to continue use as he had in the past without any specific limitation. This was later refined in 2011 to include specifics and made in writting at that time.