Intermittent Possession Puts Owner On Notice Of Prescriptive Easement

Intermittent Possession Puts Owner On Notice Of Prescriptive Easement – Jonathan Finke


In 1960, Fred and Viola Fluckiger purchased their home in a quiet neighborhood outside of Los Angeles. Shortly thereafter, they poured a concrete driveway partially encroaching on their neighbor’s property. The Kings subsequently purchased the property from the Fluckigers in 1994 and used the encroaching driveway to access their garage.


In 1963, the Wus had purchased the property adjacent to the Fluckigers property and containing the encroaching driveway. Up until 2009, they leased their property out, but had intermittent possession of the property in between lease terms. Near the end of 2009, the Wus began constructing a guardrail over the piece of the driveway that encroached on their property. The Kings sued for their right to use the encroaching driveway, asserting a claim of a prescriptive easement.


To prove a right to a prescriptive easement, the Kings must have used the property for the statutory period of five years, which use has been 1) open and notorious; 2) continuous and uninterrupted; 3) hostile to the true owner; and 4) under claim of right.


Prior to trial, the Wus did not offer any evidence to negate the factors needed to prove the existence of a prescriptive easement. Instead, they argued that they had used the property as a leasehold since 1965, and therefore, they had not been in continuous possession of the property for the five years required under statute for the Kings to have a claim against their right to the property.


According to the Court of Appeal, California law does not require the actual owners of the encroached land to have been in continuous possession of the property for five years. Instead, if at any point during the adverse use an owner or landlord has been in possession, including constructively at the expiration of a renewable lease, that possession starts the clock, and he or she could and should have taken action to interrupt such use.


In finding for the Kings, the Court held that the Wus were in actual possession of their property for nearly two years between 1963 and 1965, and for a period of a year between 1966 and 2008. Additionally, the Wus had many tenants at the property over the years, meaning that they had numerous gaps in leases. As a result of those gaps, the Wus also had constructive possession at the expiration of each lease.


Based on actual and constructive possession by the Wus, the Court of Appeal ruled that this possession started the clock and the Wus did in fact “have possession of the property for the statutory period of five years.” Therefore, the Kings had a prescriptive easement by their use of the driveway, enjoining the Wus from building the guardrail.



King v. Wu (2013) 13 Cal. Daily Op. Serv. 8910