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Which type of easement is created by continuous and apparent use of another's property without permission?

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Audio Lesson

Duration: 2:42

Question & Answer

Review the question and all answer choices

A

Easement by grant

B

Easement by necessity

C

Easement by prescription

Correct Answer
D

Easement by implication

Why is this correct?

An easement by prescription is created when someone uses another's property openly, notoriously, continuously, and hostilely for the statutory period (5 years in California).

Podcast Transcript

Full conversation between instructor and student

Instructor

Hey there, let's dive into today's question about land use controls. Are you ready to tackle this one?

Student

Yeah, I'm ready. The question is about which type of easement is created by continuous and apparent use of another's property without permission, right?

Instructor

Exactly! This question is testing your understanding of how easements can be established without formal agreements. Let's break it down. We have four options: easement by grant, easement by necessity, easement by prescription, and easement by implication.

Student

Okay, so we're looking for the one that fits the scenario of using someone else's property without permission over time.

Instructor

Right. The correct answer is C, easement by prescription. This type of easement is created when there's open, notorious, continuous, and hostile use of another's property without permission for the statutory period. It's all about recognizing that 'without permission' indicates hostile use, which is a key element of prescription.

Student

Got it. So, why is that the right answer and not the others?

Instructor

Great question. Easement by grant requires a written agreement, so it's not about unauthorized use. Easement by necessity is when access is essential, like during subdivision, which is not the same as continuous use without permission. Easement by implication is inferred from circumstances, not just unauthorized use. The key here is the 'without permission' part, which points us to easement by prescription.

Student

I see now. So, when I see 'use without permission' in a question, I should be thinking about easement by prescription?

Instructor

Absolutely. It's a helpful memory technique. You can remember it with the acronym O.N.C.H., which stands for Open, Notorious, Continuous, Hostile. These are the elements that define easement by prescription.

Student

That's a great tip! Thanks for explaining it. What about the other options? Why are they wrong?

Instructor

Easement by grant is wrong because it requires permission from the property owner, which contradicts the 'without permission' part of the question. Easement by necessity is incorrect because it's about essential access, not continuous use. And easement by implication is off because it's based on pre-existing relationships or circumstances, not just unauthorized use.

Student

I think I've got it now. Continuous and apparent use without permission means easement by prescription. Thanks for the help!

Instructor

You're welcome! I'm glad you understand it now. Remember, when you're tackling questions about easements, look for those key elements. Keep practicing, and you'll do great on the exam. Keep up the good work!

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