Can my neighbor claim a prescriptive easement across my property even though they have their own access and there has not been 5 years of hostile use?

I am selling my raw land. I gave written permission in 1979 for a bordering neighbor to cross my property as a matter of convenience for them. They have their own road recorded on their deed. Land was re-sold in 2005. In 2009 I again gave written permission and later rescinded it last month. Neighbors claim a prescriptive easement even though 5 year hostile use has not been met and no strict necessity applies. I have offered cash for signing a quitclaim but they won’t stop using my property. What options do I have? Perspective buyers see this as a deal breaker.

Asked on March 9, 2011 under Real Estate Law, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

In order to establish a prescriptive easement also known as adverse possession, your neighbor would have to prove continuous, hostile, open and notorious and actual use of crossing your property for the five year statutory period.  If the neighbor has not satisfied the five year requirement, no prescriptive easement (adverse possession) has been established.  However, another method of reaching the five year period is tacking which means successive owners may have used it for shorter periods of time, but the total time of crossing your property may amount to five years and therefore establish a prescriptive easement (adverse possession).  That may present a problem for you given the additional time the previous neighbor was crossing your property.

If the time is not enough to satisfy the five year statutory period, you could sue your neighbor for nuisance.  Nuisance is a serious and unreasonable interference with your use and enjoyment of your property.  In a case of nuisance, monetary damages are inadequate because of the multiplicity of suits due to your neighbor continuing to cross your property.  Damages are also an inadequate remedy because land is unique. Therefore, since damages are inadequate, you could seek an injunction to prevent the neighbor from crossing your property.  The court will balance the burden and benefit of the competing interests between you and your neighbor to determine whether or not to issue an injunction.  The three phases of the injunction are: (1) temporary restraining order which would prevent the neighbor from crossing your property until a hearing at which time the court will determine whether or not to issue a (2) preliminary injunction which will be in effect until the court determines whether or not a (3) permanent injunction  should be granted.

The language of the injunction may be framed in the negative to prevent the neighbor from crossing your property and also to avoid supervision problems.

The court may require a bond be posted in order to issue an injunction.  This could be very expensive; however, the court has the discretion to waive the bond for financial hardship or other reasons.

Due to the ongoing nature of your neighbor frequently crossing your property, this would constitute a nuisance rather than just trespass. 

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