What constitutes a prescriptive easement?

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What constitutes a prescriptive easement?

My driveway borders a school field with a 4 ft high concrete retaining wall in between. The wall is the property of the school and is set back on to the school’s property 8-10 inches. My driveway is paved right up to the wall and has therefore been on the school’s property for 21 years. The wall is now being reconstructed and has been moved to only be set back 4 inches from the property line. As a result my driveway has been narrowed 4-6 inches. Do I have a prescriptive easement based on 20+ years of open, continuous use that prevents them from moving the wall closer to the property line?

Asked on January 2, 2012 under Real Estate Law, California

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

A prescriptive easement under common law in this country is the open, continuous, exclusive, hostile and under claim of right use of another person's property for more than five (5) years. With a prescriptive use claim property taxes need not be paid like a claim for adverse possession.

In your situation most likely you would not be able to have a prescriptive easement against the school field in that typically per each state's staute one cannot obtain a prescriptive easement or adverse possession against a governmental entity. I presume that the school field that you have written about is owned by a governmental entity.


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