Be Wary of Neighbors Encroaching on Your Property

by Stephen D. Pahl and Servando R. Sandoval
Pahl & McCay
225 West Santa Clara Street
Suite 1500
San Jose, California 95113
408/286-5100 (phone); 408/286-5722 (fax)


Rental housing owners and managers must pay special attention to neighbors who may be encroaching onto their property or who may be using their property for a specific purpose.

This issue is most common in circumstances where adjacent property owners build a fence that extends beyond their property line, or make use of your property to gain access to their own property.

An example of the second scenario may potentially arise in the following situation: A residential apartment complex is located across the street from a supermarket. Due to the narrow street, the delivery trucks drive onto the parking lot of the apartment complex to back up into the loading dock area of the supermarket.

After a period of time, the owner or manager of the apartment complex demands that the supermarket instruct its truck drivers to stop driving onto the apartment complex parking area. However, the supermarket may be entitled to a prescriptive easement, giving the supermarket the right to continue using the apartment complex property. Surprised? Read on and discover how it can happen.

Notorious and hostile possession

To establish a prescriptive easement, the supermarket must establish that it has used the property for a statutory period of time, which differs from state to state. In California, the statutory period is five years. The supermarket also must establish that its use of the property was open and notorious, continuous and uninterrupted, and hostile.

If all of those elements for a prescriptive easement are satisfied, the user does not acquire title to the property, but does acquire the right to use the property for the same specific purpose as it previously did. Once a prescriptive easement is established, however, the owner of the property is no longer prevented from excluding or unreasonably interfering with the use of the prescriptive easement.

To be "open and notorious," the use must be such that it places the owner of the property on notice that someone else is using the property. This requires that the encroachment be in an open manner and not hidden from the owner.

In the supermarket example, this condition is satisfied if the trucks drove onto the apartment complex at different times of the day. The use of the property is therefore open because it is possible for the owner of the property to notice that the supermarket is using his property. The use of the property must be such that a reasonable person would see the trucks driving onto the property. It does not matter that the owner or manager does not have actual knowledge of the trucks driving onto the parking area; it is sufficient that a reasonable person would otherwise see the use.

Frequency of use a major factor

To establish the "continuous and uninterrupted" factor requires use of the property continuously and not merely sporadically or occasionally. The supermarket, for example, would be required to demonstrate that the trucks used the apartment complex property on a regular basis, and not merely that a few of its trucks utilized the parking area occasionally.

Further, the use must be uninterrupted for the full statutory period. The owner may prevent a prescriptive easement by stopping or interfering with use of his property prior to the statutory period. Each time the use of the property is interrupted, the statutory period commences again.

Each affected property owner, however, is allowed to "tack" to the statutory period. This means that a person may rely on use of the property by a previous party.

Let’s assume the statutory period is five years. If the current owner of the supermarket only owned the grocery for three years, he could not establish a prescriptive easement. However, if the previous owner of the supermarket also used the apartment complex in the two previous years, the current owner is able to establish a prescriptive easement because the current owner is allowed to "tack" on the two years by the previous owner. The current owner is therefore able to establish that the use was continuous and uninterrupted for the entire statutory period.

Without proper consent

For the use to be "hostile," it is not required that the parties have a dispute as to the title during the period of possession, but that the non-owner’s use of the property must be adverse to the owner of the property. The user must demonstrate that the use of the property was without the consent or permission of the owner. Once the owner of the property gives consent or permission, the use is no longer adverse and a prescriptive easement cannot be established.

Several states have enacted statutes that allow owners of real property to record or post a notice making any public use of their property available by permission or consent. This type of notice may prevent a person from obtaining a prescriptive easement because any use is by permission, and thus they cannot establish the "hostile" element.

If, as an owner or manager, you notice that your neighbor is using your property, it is imperative that such use be stopped immediately to prevent a prescriptive easement.

There are several methods to accomplishing this. The first alternative is to block access in a way that the adjacent property owner is no longer able to use your property. If such option is not possible, demand that the neighbor stop using your property and if the neighbor refuses to stop using the property, consider filing an action for trespass.

If you do not wish to stop your neighbor from using your property, but wish to prevent a prescriptive easement, make sure to inform the person using your property that any continued use is with your express consent, thereby eliminating the "hostile" factor. You might also consider recording or posting a notice as allowed in your particular state.