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All too often, a church neighbor will ask if they can install a gate between their property and that of the church parking lot so they can access their property for one thing or another, such as parking a boat or RV in their back yard. Most often however, the general public will use the church property as a u201cshort-cutu201d when walking from one place or another. This article focusses on the later of the two and the possible creation of an easement.
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Creating Prescriptive Easements by Bushore church real estate
All too often, a church neighbor will ask if they can install a gate between their property and that of the church parking lot so they can access their property for one thing or another, such as parking a boat or RV in their back yard. Most often however, the general public will use the church property as a “short-cut” when walking from one place or another. This article focusses on the later of the two and the possible creation of an easement.
Easements: • At its root, an easement is a non-possessory interest in land wherein the holder of that right is permitted to make use of another’s land for a specific purpose. An easement may generally be created by an expressed written grant, implication, necessity, prescription or estopple. Assuming your church has not given anyone permission to traverse across its land, your neighbors are not landlocked, and it did not exist at some point in the past, prescriptive rights come into play.
Prescriptive Rights: • California provides for the creation of a prescriptive easement by allowing those using your church property to prove that their use of your land was: 1) open and notorious; 2) continuous and uninterrupted for a period of five years; and 3) hostile. Of particular importance is the fact that the user of your land need not be the only one to exclusively due so, but in this instance, the general public may be sufficient.
Effects on the Property: • Naturally, whenever someone uses the property of another, be it a tenant, guest, or trespasser, the owner of the land holds at least some liability for the harm they may suffer. However, what is often overlooked is how that use of the land effects property values. As a general rule of thumb, once a prescriptive easement has been created, it cannot be terminated by merely blocking off access. Additional, constructing a new structure which adversely effects that easement becomes nearly impossible as the easement may not be interfered with once created. If and when the property is sold, the easement will have to be disclosed to the potential buyer who in turn, may determine that the easement interferes with their intended use of the property.
Effects on the Property: • Naturally, whenever someone uses the property of another, be it a tenant, guest, or trespasser, the owner of the land holds at least some liability for the harm they may suffer. However, what is often overlooked is how that use of the land effects property values. As a general rule of thumb, once a prescriptive easement has been created, it cannot be terminated by merely blocking off access. Additional, constructing a new structure which adversely effects that easement becomes nearly impossible as the easement may not be interfered with once created. If and when the property is sold, the easement will have to be disclosed to the potential buyer who in turn, may determine that the easement interferes with their intended use of the property.
Conclusion: • The church must be aware of and take action when it is first discovered that someone is using the church property without permission. If all else fails, the property owners only option that remains is to file a quiet title lawsuit to take back claim to the property within five years of the commencement of the adverse use. Otherwise, that right to claim the property in question can be lost.
