Property owners whose land is crossed over or otherwise used by people who don't own it are well-advised to keep in mind the rules regarding prescriptive easements. If they don't, they may wake up some day to discover that those other persons have gained a permanent right to use that property in the manner that they have been doing.

A recent California ruling (Pulido v. Pereira, Third Appellate District Court of Appeal, March 5, 2015) nicely lays out some of those considerations. According to the Court record, here's what happened:

"The Pulidos purchased property in Calaveras County in 2001. When Antonio Pulido first visited the property he took Hogan Dam Road and turned off onto Quartz Hill Drive to access the property. There was no gate where he turned onto Quartz Hill Drive. When the Pulidos purchased their property, Dennis Lee owned the property that was later purchased by Pereira. The Pulidos bought the property with the intent to build a house on it. In the meantime, they were using the property for target shooting. Antonio Pulido went to the property once or twice a month to walk around and shoot targets. Every time the Pulidos went to the property they had to untie a chain strung between two posts at the entrance to Quartz Hill Drive off of Hogan Dam Road. (The chain was strung up by the neighboring property owner, Pereira. Quartz Hill Drive was actually part of Pereira's property.)

"In 2007 the Pulidos' neighboring property owner, Pereira, informed him that he was going to put a lock on the gate. Antonio Pulido told Pereira to give him a key to the gate if he locked it. Pereira said he would think about it. The Pulidos continued to use Quartz Hill Drive to access their property, until one day they arrived at the gate and a woman there told them a court case had been filed and they were not to use the road anymore. Pereira later installed a lock and dug a trench across Quartz Hill Drive."

Naturally, the dispute wound up in court, which might be better than the old west six-gun ways of settling such matters. The trial court "determined the Pulidos had established a prescriptive easement over Quartz Hill Drive. The trial court stated that [the Pulidos'] use, together with that of their predecessors, had satisfied the burden of proving continuous use of Quartz Hill Drive for the five year prescriptive period."

"Judgment was entered on the cross-complaint in favor of the Pulidos for an easement by prescription for ingress and egress over Quartz Hill Drive on Pereira's property. Pereira was permanently enjoined from interfering with the Pulidos' use and enjoyment of the easement."

Pereira appealed. The Appellate discussion began by laying out the essential issues. "The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years."

In examining the matter of continuous use of the road, the Appellate Court pointed out that since 1990 the road had been used by the persons who had owned the property that Pulidos had purchased. Although it was not necessary to demonstrate here (because Pulidos himself had used it for more than five years), the question of use by a preceding owner can be relevant in a prescriptive easement claim. Use by a previous owner counts toward the five-year period, as long as it is continuous with the use of the claimant. A new owner of land could base a prescriptive easement claim in part on the use by previous owners.

Pereira argued that he had no notice of the use of the road. But the Appellate Court pointed out "Notice can be inferred or implied from visible, open, and notorious use… Here there was evidence that the Pulidos used the easement regularly and openly… Coupled with the fact that the road had visible track marks and that Pereira must have been aware someone was using the road since he strung barbed wire across the entrance to the road, there was sufficient evidence from which the trial court could conclude Pereira had notice of his neighbor Pulidos' use of the road."

Property owners who are concerned that the uninvited users of their property might be establishing the elements of a prescriptive easement claim should seek the advice of a real estate attorney. Curiously, one of the ways the establishment of a prescriptive easement can be thwarted is by granting permission to use the property. (Have you ever seen those signs that say,

"Right to pass by Permission, and Subject to Control of Owner: Section 1008, Civil Code"?) But that's a topic for another day.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way.