Which type of easement is created by continuous and apparent use of another's property without permission?
Audio Lesson
Duration: 2:42
Question & Answer
Review the question and all answer choices
Easement by grant
Easement by grant requires a voluntary agreement or written document between the parties, not unauthorized use. It cannot be created without permission from the property owner.
Easement by necessity
Easement by necessity arises when landlocked property requires access, typically during subdivision or inheritance, not through continuous use without permission.
Easement by prescription
Easement by implication
Easement by implication requires pre-existing relationship or circumstances between properties, such as prior use or necessity, not simply unauthorized use over time.
Why is this correct?
Easement by prescription is correct because it specifically requires continuous, apparent use without permission (hostile use) for the statutory period. This matches the question's description of using another's property without permission over time.
Deep Analysis
AI-powered in-depth explanation of this concept
Understanding easements is crucial in real estate practice as they affect property rights, values, and usage. This question tests knowledge of how easements can be created without formal agreements. The core concept is distinguishing between different types of easement creation methods. To arrive at the correct answer, we must analyze the elements mentioned: 'continuous and apparent use without permission.' Easement by prescription requires open, notorious, continuous, and hostile use for the statutory period. Easement by grant requires a written agreement. Easement by necessity arises when access is essential. Easement by implication is inferred from circumstances. The question's challenge lies in recognizing that 'without permission' indicates hostile use, a key element of prescription. This connects to broader concepts of property rights, limitations on absolute ownership, and how usage can establish legal rights over time.
Knowledge Background
Essential context and foundational knowledge
Easements by prescription originated from English common law and are based on the principle that long-term, open use can establish property rights. In California, the statutory period is five years. This doctrine balances property rights with reality - if someone uses land openly for years, owners are deemed to have notice. Prescription differs from adverse possession as it creates a right to use rather than ownership. California Civil Code §1007 governs prescriptive easements, requiring open, notorious, continuous, and hostile use without interruption for five years. This prevents property owners from sleeping on their rights while allowing reasonable use of adjacent properties.
O.N.C.H. for Open, Notorious, Continuous, Hostile
Remember these four elements required for an easement by prescription. If all four exist, you likely have a prescriptive easement.
When questions mention 'use without permission,' focus on easement by prescription. Look for the key elements: continuous, apparent, and hostile use over time.
Real World Application
How this concept applies in actual real estate practice
A real estate agent shows a property with a well-worn path across a neighbor's yard leading to the street. The buyer asks about this path. The agent explains that if the path has been used openly and continuously for five years without permission, the neighbor may have established an easement by prescription. This could affect the buyer's future use and potentially the property value. The agent would need to investigate when the path began being used and whether it meets all the O.N.C.H. criteria to properly advise the client.
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