Legal Update

A NEIGHBOR’S CONTINUED USE OF A BANK’S PARKING LOT CAN BECOME A PERMANENT RIGHT OF WAY BY PRESCRIPTIVE EASEMENT

  • August 14th, 2004
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The California Court of Appeal for the 2nd District in San Luis Obispo County ruled on August 5, 2004 in the case of Felgenhauer v. Soni  17 Cal. Rptr. 3d. 135 (2004), that the owner of a restaurant in Paso Robles who had deliveries made to his back door by crossing over the adjacent bank’s parking lot for more than five years acquired a prescriptive easement which could not thereafter be blocked by the bank.

DECISION: The Court of Appeal ruled that the neighboring restaurant owner acquired a prescriptive easement by an open and notorious use that was hostile and adverse, continuous and uninterrupted for the five-year statutory period under a claim of right. It was not necessary that the neighbor believe the use of the parking lot was legally justified or that he had the right to use it, only that the use was without permission of the bank. The court’s opinion is set forth in full at the end of this e-mail.

ANALYSIS: This case is another important reminder to all landowners to be vigilant in observing whether there is a repetitive use of any portion of their property by persons who do not have express permission. If so, the use must be actually stopped, or express permission for the use must be granted (preferably in written form which is admissible in court) before the use continues for five years otherwise they may acquire the permanent legal right to the use. Alternatively a landowner can avoid prescriptive easements by a recorded notice in compliance with Civil Code §813 and by posting signs in compliance with Civil Code §1008 before the five year period has expired.