Continued use by the neighbor of the landowner’s property for access and parking following the division of lots during the sale by the trustee Establishment of a prescriptive easement | Perkins Coie


A California appeals court ruled that the long-standing use of a landowner’s property for access and parking by residents of the adjacent lot established a prescriptive easement. Husain v. California Pacific Bank, 61 App Cal. 5th 717 (2021).

For many years, the properties of the landowner and neighbors were jointly owned and used as residences. One property (the ‘El Camino’ property) has been developed with a large apartment complex and underground parking, while the other property (the ‘Willow’ property) has been developed with a duplex and above ground parking. The previous owners had obtained local approval for improper use to allow tenants of the apartment complex to use off-site parking at the Willow Lot. In 2011, the previous owner defaulted on his mortgages and the El Camino and Willow properties were sold to different lien holders in trust sales, after which tenants at the El Camino apartments continued to use the driveway of the Willow property for access and parking in accordance with past use despite property separation. In 2017, the plaintiff acquired the Willow property and, shortly thereafter, brought a low-key legal action against the bank owner of the El Camino property, who filed a counterclaim for a normative easement.

Under state common law, one person establishes a normative easement over another’s property by open, notorious, continuous and adverse use of the property for an uninterrupted period of five years. The owner of the serving fund must have at least one implied notice of the use of others, and such use must be made without express or implied acknowledgment of the owner’s property rights. At trial, the plaintiff attempted to defeat a prescriptive easement finding by arguing that the use of residential tenants was “permissive”, citing a precedent that a permissive use survives a change in ownership until it is used. a new owner unequivocally repudiates the previous permissive use.

However, the Court of Appeal blamed the plaintiff’s argument for two reasons. First, because an owner cannot hold an easement against himself, the court ruled that the statute of limitations did not begin to run until 2011, when the dominant and serving estates were separated. through fiduciary sales. The court also highlighted evidence in the record that the former owner characterized the El Camino owner’s use of the Willow property as an “intrusion” in foreclosure proceedings in 2011. Further, the court noted that whether the use of the property is permissive or adverse is a question of fact for the trial court and no abuse of power has been shown.

Finally, the Court of Appeal found an equitable basis in the indemnification conditions of the plaintiff’s purchase contract. When he purchased the Willow property in 2017, the plaintiff signed an indemnity and disclaimer that cited “potential easement issues” and accurately identified the known past use of the Willow property by tenants. of the El Camino property. The agreement further stipulated that “the purchaser is required to carry out his own due diligence and legal review of these matters”. Therefore, where the plaintiff had been made aware of the potential easement prior to his purchase of the property and would have had the opportunity to justify the easement in negotiations of the purchase price and other terms of redress, fair considerations reinforced the determination that a normative easement had been established.

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