Is an express grant easement a prescriptive easement?

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Is an express grant easement a prescriptive easement?

In the deed to my house I was granted a parking easement for 6 parking spots on my neighbor’s property. In 2000 I gave him permission to put grass on it and about 4 years ago he landscaped it wihout my permission. I want to sell the parking easement rights to him now. Can he say they are his now since he landscaped them and the landscapeing has kept me from using them. I’m told my rights are irrevokable. Is this an Express Grant easement NOT a prescriptive easement?

Asked on July 27, 2010 under Real Estate Law, California

Answers:

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

Answered 11 years ago | Contributor

The language in your deed is an affirmative easement.  An affirmative easement in this case authorizes the use of your neighbor's property for the parking spaces as set forth in your deed.

An affirmative easement and a prescriptive easement are completely different.  A prescriptive easement is also called adverse possession.  In order for your neighbor to obtain a prescriptive easement over the parking spaces, he would have to prove continuous, hostile, open, notorious and actual use of the area in question for the statutory period.

The statutory period in CA is five years.  Not enough time has elapsed for your neighbor to be able to contend that he has a prescriptive easement.  Your neighbor would also have to prove that his use of the area in question has been continuous for the statutory period.  He would have to prove that his use has been hostile (in derogation of your rights in using the parking spaces) for the statutory period.  He would have to prove that his use has been open and notorious ( he did not conceal his use and you were placed on notice of his use) for the statutory period.  He would also have to prove actual use of the area in question for the statutory period.

Since your neighbor has not satisfied all of these items for the statutory period of five years, he does not have a prescriptive easement. 

 

 


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