Why is there so much confusion about the law of prescriptive easements and encroachments?
The law of prescriptive easements was created by the courts in England and the United States over hundreds of years and the resulting rules are arcane and frustrating. The archaic phrases used, such as open & notorious and hostile & adverse are as useless as they are confusing. See the chart describing the archaic terms at the end of this article. How does a prescriptive easement get established? There are four basic elements, as shown below: The requirements to establish a prescriptive easement 1. Use that is actual and open 2. Use that is adverse to the owner (w/o permission) 3. Five years of continuous use 4. Must not exclude use by the owner What is adverse possession? Think of adverse possession as squatters rights. The elements necessary to establish ownership (legal title) through adverse possession are very similar to elements necessary to establish prescriptive easements, but there is one additional requirement. To acquire title to property in California through adverse posses
