Under current California law, a person who enters and uses (the “user”) an owner’s land may obtain the ability to continue to use the owner’s land, by prescriptive right, as long as the user’s entry and use meets certain requirements. In the simplest form, the user’s entry and use of the owner’s land must be Adverse to the owner of land, it must be Open and Notorious, it must be Continuous over 5 Years Without effective Interruption by the land owner. This seems simple enough but the law in this area can be quite complex and the outcome to any asserted prescriptive right can change just by a hair-splitting change in the facts surrounding a user’s entry and use of the owner’s land.
In a more detailed review, to establish the Adverse requirement, the user must show that the use is made without the consent of the owner, without authority, and not in subordination to the title of the owner. The user’s entry and use must be Open and Notorious. Open is established by showing that the entry to and use of the property was not made secretly and may also mean that the use is visible or apparent. Notorious generally means that the use is known to the owner or is widely known in the neighborhood.
Continued without effective interruption which requires a showing that the entry and use is, not necessarily continuous, but continual in that seasonal use is sufficient, e.g., used the path for several months every winter for the last 5 years. Without Effective Interruption requires a showing that the entry and use was not interrupted for any reason for a 5 year period.
So if a user’s entry and use of an owner’s land meets all of the above requirements (with some exceptions), the user effectively terminates the owner’s rights to exclude the user from the land in concert with bestowing an entitlement (an easement or prescriptive right) to continue the entry and use on the land by the user. 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.
Authored by Karen Chilina and Co-Authored by Greg Chilina
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 email@example.com 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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