An owner can do a few things to prevent prescriptive rights in their land. Remember that under California law, a person who enters and uses (the “user”) the land of another (the “owner”) and the use is Adverse to the owner, Open and Notorious, and Continued for 5 Years without Effective Interruption, establishes a prescriptive right, the right to enter and use, in the owner’s land. So to prevent a prescriptive right, the owner may interrupt the adverse use before the prescriptive 5 year period has passed. This can be done by causing the adverse user to stop the use or bring a legal action that results in establishing the owner’s right to terminate the use. It is highly recommended that the owner not be confrontational in trying to stop the entry and use of the land. To do so may cause the owner other legal issues than preventing just prescriptive rights in the user.
Legal action to prevent prescriptive rights is costly, so it may not be recommended that the owner bring a legal action. Along this line, there are two possible solutions to prevent prescriptive rights in the user without confrontation or legal action. First, the owner may post a sign which states a right to pass by permission and list any permissive or prohibited uses of the land by the public. The language on the sign posted on the land must meet specific requirements to be effective. As such, it is highly recommended that the owner seek advice of a real estate attorney before taking this first approach.
The second option is that the owner can record, in the office of the recorder of the county in which the land is situated, a notice of consent to public use. Like posting the sign on the land, the notice in the county records must meet specific requirements to be effective. As such, it is highly recommended that the owner seek advice of a real estate attorney before taking this second approach.
Both are a means to counter or interrupt adverse use of the land by users thus preventing prescriptive rights but only if done so correctly. Since the first option posts a sign on the land, this may place users on immediate notice that the owner is trying to prevent the user from obtain prescriptive rights. This may cause immediate controversy and result in legal action which is costly. However, the second option effectively prevents prescriptive rights but does so “silently” and usually without immediate controversy.
Generally speaking, once an easement location has been fixed, it can be relocated by the owner of land only with the consent of the owner and user. However, there exists some case law and a solid public policy argument that allows the owner to make unilateral changes to the easement location given certain conditions. Ultimately, unless the granted easement states the opposite, the owner should be allowed to make reasonable changes in the location of the easement, at their expense, to permit continued use or development of the land but only if the changes do not significantly lessen the utility of the easement, increase the burdens on the easement use and enjoyment, or frustrate the purpose for which the easement was created. Anyone dealing with the above issues should contact the Chilina Law Firm or another law firm focusing on California land use and real property law for legal advice.
Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email at firstname.lastname@example.org or visit the Chilina Law Firm at www.chilinalaw.com. Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.
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