Question #1

Question:

We would like to know what to do in the following situation:

We have a piece of land in Northern California which we haven't built on yet. We verbally granted our neighbor permission to drive his car on the strip of our property adjoining his and also park his car there. There is no written easement, nor has any other person been given any rights to use our property. Unfortunately, we do not live close by.

What must we do to assure that:

1. we are able to revoke the neighbor's use of the property when we build

2. we are able to prevent other from driving over our land and creating a precedent for use, or even a hostile easement.

Answer: 

Thank you for your question regarding your neighbor's use of your land. The first thing to do would be to write your neighbor a friendly letter, simply outlining the terms of your agreement, and making it clear that you reserve the right to revoke his use of your property at any time. You should send it via certified mail, so that you will have proof of receipt if it ever becomes an issue. Such a letter would serve to deter him from later trying to assert a prescriptive easement over your property, because in order to do so, he would have to prove that his use was adverse to you. If you've given him permission, then his use of the property could not be adverse to you as a matter of law.

    The situation is a little trickier when it comes to third parties, however. If a third person uses your property for a period of five (5) years, and the use is "open, adverse, and notorious", it could potentially ripen into a prescriptive easement. It doesn't matter whether you were actually aware of the use or not; the fact that the use was open and obvious to the world would suffice.

    From time to time you may have seen little plaques in sidewalks that say something like "Private property. Permission to pass over revocable at any time". The purpose of these plaques is to prevent someone from trying to a assert a "public easement" by prescription. Unfortunately, whether posting such a sign on your property would be sufficient to prevent some third party from claiming an easement would depend on the surrounding circumstances. While posting a "private property" or "no trespassing" sign would be evidence that anyone using your property does so with your permission, it is not necessarily conclusive.

    There is a code section which attempts to deal with this situation, however. California Civil Code Section 1008 provides that if a property owner posts a sign reading "Right to pass by permission, and subject to control, of owner", then no one will be able to claim an easement by prescription. This notice must be posted at each entrance to the property, OR at intervals of no more than 200 feet along the property boundary. Unfortunately, this statute has not yet been tested in court, so it's difficult to say how a court might rule in a particular situation. However, posting such a sign would at least be evidence that the owner attempted to comply with the statute in order to prevent third parties from claiming prescriptive easements over the property.

    Please note that the foregoing is intended as a general overview of the law of easements, and is not intended as specific legal advice. Since cases involving prescriptive easements tend to be very fact specific, you should consult with your own attorney who can give you specific advice tailored to your particular circumstances.