Disputes over property rights often arise not from recorded deeds, but from long-term use or occupation of land. California law recognizes two distinct doctrines that may confer rights upon those who use land without permission: adverse possession and prescriptive easements. While the two doctrines share certain requirements—such as open, notorious, and hostile use—they differ significantly in scope, requirements, and legal consequences.
Adverse Possession: Acquiring Full Title
Adverse possession is a method by which a person may acquire legal title to real property through continuous, hostile, and exclusive possession over a statutory period. In California, the elements of adverse possession are codified in Code of Civil Procedure §§ 318–325.
See CCP § 325
To succeed in an adverse possession claim, the claimant must prove:
- Actual possession of the property;
- Open and notorious occupation, such that the true owner is on notice;
- Hostile claim of right, adverse to the interests of the true owner;
- Continuous and uninterrupted possession for five years; and
- Payment of all property taxes assessed against the property during the statutory period.
The requirement of tax payment is a distinctive feature of California law. Without proof that the claimant has paid all assessed taxes for five consecutive years, the claim fails as a matter of law. See Gilardi v. Hallam, 30 Cal. App. 4th 1716, 1721–22 (1994) (view opinion).
If successful, adverse possession results in the transfer of fee title to the claimant, extinguishing the record owner’s rights.
Prescriptive Easements: Acquiring Use Rights Only
By contrast, a prescriptive easement grants only a right to use another’s land, not ownership. The doctrine is governed by common law principles, as well as by Code of Civil Procedure § 321, which sets forth the five-year limitations period for actions involving possession.
See CCP § 321
The elements of a prescriptive easement closely mirror those of adverse possession, with key distinctions:
- Open and notorious use of another’s property;
- Hostile and adverse claim of use (without permission);
- Continuous and uninterrupted use for five years;
- Reasonable certainty of the use’s location and scope.
Unlike adverse possession, exclusive possession and tax payment are not required. The claimant must show continuous use of the easement area—such as a driveway, pathway, or utility corridor—over the statutory period.
In Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564 (1984) (view opinion), the California Supreme Court upheld a prescriptive easement where a business used a portion of an adjoining property for truck deliveries for more than five years, despite the lack of consent from the record owner.
Key Differences Between the Doctrines
1. Nature of the Right
- Adverse possession results in ownership of the property itself.
- Prescriptive easement results only in a limited right to continued use.
2. Exclusivity and Taxes
- Adverse possession requires exclusive occupation and proof of property tax payment.
- Prescriptive easement does not require exclusivity or tax payment.
3. Scope
- Adverse possession affects the entire parcel possessed.
- Prescriptive easement is limited to the precise use established (e.g., ingress/egress, passage, or utility).
4. Effect on Title
- Adverse possession transfers title and extinguishes the owner’s rights.
- Prescriptive easement leaves ownership intact but burdens the property with a servitude.
Defenses and Limitations
Property owners can defend against both claims by:
- Granting permission (thereby negating hostility);
- Interrupting the claimant’s possession or use within the five-year period;
- Filing timely legal action to quiet title or eject the occupier.
California courts have emphasized that these doctrines are disfavored, as they transfer rights without compensation. Thus, courts apply them strictly, requiring clear and convincing evidence. See Mehdizadeh v. Mincer, 46 Cal. App. 4th 1296, 1306 (1996) (view opinion).
Practical Implications for Property Owners and Investors
For property owners, vigilance is essential. Long-term, unchallenged use of property by neighbors, businesses, or members of the public can ripen into legally enforceable rights. For real estate investors, due diligence should include:
- Reviewing surveys and title reports for unrecorded easements;
- Inspecting for visible signs of use by others;
- Asking sellers about historical land use patterns;
- Considering title insurance coverage exclusions for prescriptive rights.
Failure to investigate may result in acquiring property that is already subject to burdensome easements or vulnerable to adverse possession claims.
Conclusion
Adverse possession and prescriptive easements serve similar purposes—rewarding long-term use and penalizing neglectful owners—but they diverge sharply in outcome. One grants full ownership, the other a use right. Both require strict proof under California law and are frequently litigated in boundary disputes, access conflicts, and neighbor controversies.
At Guiding Legal Counsel, APC, we represent landowners, investors, and developers in disputes involving adverse possession, prescriptive easements, and quiet title actions. If you are facing a property use conflict, contact us today to protect your rights, resolve disputes efficiently, and secure your real estate interests.