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California Supreme Court Rules on Whether Non-Recreational Use of Private Property Creates Rights for Non-Owners

San Pablo BayReal property owners can grant rights to others to use portions of their property for certain purposes, commonly known as easements. In certain situations, however, a California real estate owner might unwittingly allow others to acquire rights to the use of their property. The California Legislature has set strict limits on the circumstances in which this might occur. Earlier this year, the California Supreme Court rejected a claim that the repeated use of someone else’s private property created an easement for the plaintiffs.

An easement is a limited interest in real property with no right of possession. It involves permission to use another person’s property for a specific purpose. A public utility easement, for example, gives a city government permission to use a portion of a parcel of land for utility lines, as well as the right to access the property to perform maintenance or repairs.

Easements are usually affirmatively granted by the property owners, but they can also be created as a matter of necessity. If one parcel of land is inaccessible from the road, except by crossing another person’s property, the owner of the otherwise inaccessible land could claim an easement across the neighboring property. The principle of adverse possession, by which someone can claim title to someone else’s property by openly possessing that property for a minimum period of time, could also support an easement claim in some circumstances. A person who routinely crosses another person’s property could claim an easement based on a lengthy period of continuous use. This is the type of situation California has tried to restrict, which the court addressed in Scher.

A 1970 ruling by the California Supreme Court held that owners of coastal property grant rights to the public for recreational use of their property simply by allowing such use. Gion v. City of Santa Cruz, 2 Cal.3d 29 (1970). The California Legislature passed a law soon afterwards limiting the extent of the ruling. The law states that no use of someone else’s non-coastal property after the law’s effective date—March 4, 1972—may “confer…a vested right to continue to make such use permanently.” Cal. Civ. Code § 1009(b).

Section 1009 does not apply to coastal property, which it defines as land lying “within 1,000 yards inland of the mean high tide line of the Pacific Ocean,” as well as bays and inlets. Id. at § 1009(e). In Northern California, nothing further inland past the Carquinez Strait is considered “coastal.” Owners of coastal property can protect their rights by posting signs regarding the public’s right to use their property, or by recording a notice with the county. Cal. Civ. Code §§ 1008, 813.

The plaintiffs in this case reside in Topanga Canyon in Los Angeles. For some period of time, they used roadways crossing a neighbor’s private property to access their land, although their properties are accessible from public roads. The neighbor stopped their use of his land by blocking the private road. The plaintiffs sued, claiming an easement and arguing that § 1009 should not apply because it only addressed the recreational use of land. Both the appellate court and the Supreme Court ruled that § 1009 is not limited to recreational use and denied their claims.

Real estate attorney James G. Schwartz has advocated for the rights and interests of Bay Area property owners for more than 40 years. To schedule a free and confidential consultation to see how we can help you, contact us today online or at (925) 463-1073.

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Photo credit: nickton (Flickr: San Pablo Bay sunset) [CC BY 2.0], via Wikimedia Commons.