QIM 34 | Real Estate Litigation | Law Desk

Ava: Michael, this one comes up constantly: a family has driven across the same dirt road or used the same path for fifteen years, then a new neighbor buys the land and puts up a fence. Do those years of use count for anything?

Michael Benavides, Esq.: They might. California recognizes a prescriptive easement — a right to keep using someone else's land for a specific purpose, earned through long use rather than a deed. But the use has to check four boxes. It must be (1) continuous and uninterrupted for at least five years, which is the statutory period under Code of Civil Procedure section 321; (2) open and notorious, meaning visible enough that the owner should have known about it; (3) hostile or adverse — used without the owner's permission, under a claim of right; and it has to be reasonably consistent over that period.

Ava: "Hostile" sounds aggressive. Does that mean there has to be a fight?

Michael Benavides, Esq.: No — it's a legal term, not an emotional one. "Hostile" just means without permission. And that's the pressure point that decides most of these cases: permission defeats a prescriptive easement. If the owner ever gave the users a license — even a friendly "sure, go ahead and use the road" — the use isn't adverse, and the five-year clock doesn't run. That's also how a landowner can protect themselves: granting written permission, or in some circumstances posting or recording the right kind of notice, can stop a prescriptive right from forming.

Ava: How is this different from someone claiming they now own the strip of land?

Michael Benavides, Esq.: Good distinction. That's adverse possession — claiming ownership — and it's harder, because adverse possession requires the claimant to have paid the property taxes on the disputed strip, a requirement that comes from Civil Code section 325. A prescriptive easement is only a right to use, not ownership, so that tax-payment requirement generally doesn't apply. Most road and driveway disputes are about the right to use, not title, so prescriptive easement is the usual battleground.

Ava: If the fence just went up, what should the family do?

Michael Benavides, Esq.: Document everything now — how long the road's been used, by whom, how visibly, and whether anyone ever gave or asked permission. Photos, old aerial images, and neighbor declarations matter. Honest caveat: proving five years of open, continuous, unpermitted use is evidence-heavy, and a well-timed grant of permission in the past can sink the whole claim. But if the elements are there, a court can confirm the easement and order the obstruction removed.

Talk it through with Law Desk. If a neighbor just cut off a road or path you've relied on for years, a California real-estate attorney can assess whether your use ripened into a prescriptive easement. Schedule a consultation with Michael Benavides, Esq.

Disclaimer

Attorney advertising. General information about California real-estate and easement law, not legal advice; reading it creates no attorney-client relationship. Prescriptive-easement claims are highly fact-specific and evidence-driven; statutes and case law change and are applied differently to different facts — confirm the current rules with a licensed California attorney before acting. Michael Benavides, Esq. — California State Bar No. 270714 — is the only licensed attorney and the source of every legal statement here. Ava Benavides is an editorial brand voice, not an attorney, and does not give legal advice in her own name.