Do weekly renters qualify for a prescriptive easement?

[FlyingRon]

There is a time limit the people that currently have a valid claim to make their claim for a prescriptive easement. I just don’t knkw what it is.

"What it is" is that there isn't any. For as long as they continue to occupy the property they are free to go to court with an action to perfect the easement. You can't "wait this out." In fact, waiting and doing nothing is exactly what you DO NOT want to do. The burden is on the owner to stop the trespass before it ripens into a prescriptive easement.

 

[justalayman]

"What it is" is that there isn't any. For as long as they continue to occupy the property they are free to go to court with an action to perfect the easement. You can't "wait this out." In fact, waiting and doing nothing is exactly what you DO NOT want to do. The burden is on the owner to stop the trespass before it ripens into a prescriptive easement.

Not true. Use is now permissive so they are bound by whatever limitation is in place. In other words (and using extremes). I can’t use the property from 1900 until 1930 without permission and in 1930 permission is now granted and file a claim for ap in 2018.

As far as not wanting to wait until the claim ripens; it has been stated the claim is already ripe (at least for the passage of time).

The use going forward is permissive so unless the op wants to grant a permanent easement or be forced to, waiting it out is the best option.

 

[HRZ]

I disagree that waiting it out is the safer route....the mere passage of time by itself does not ripen a prescriptive claim and we are unsure if some sort of " permission " was granted earlier and or if the usage was interrupted from time to time among other things.

THere are enough loose ends that OP needs some real legal input along with the best "facts" he can gather .

BTW. Use by permission is a far better "fact" to find than open use wo permission.

Did prior owner(s) grant passage by permission?

 

[not2cleverRed]

There is a time limit the people that currently have a valid claim to make their claim for a prescriptive easement. I just don’t knkw what it is.

According to online sources, it's 18 years in OP's state, which is why OP's neighbor made reference to renting for 18 years.

However, OP just bought the property last year. We do not know if the previous owners granted permission to neighbors, or was oblivious to others' use of the property. Open and notorious non-permissive use, uninterrupted for 18 years seems to be what is required.

If there was a prescriptive easement at the time of purchase, it apparently was not listed in the title, otherwise I think OP would have mentioned it.

 

[FlyingRon]

Making sure it is permissive is what I suggested early on, but then we get someone claiming you can wait out some imaginary statute of limitations.

18 years is NOT the statute of limitations, it's the MINIMUM time you have to occupy the property BEFORE you can make the prescription claim.

As I stated, there's no time you can wait out to PREVENT prescription if you're still allowing the people to occupy the property.

 

[justalayman]

Making sure it is permissive is what I suggested early on, but then we get someone claiming you can wait out some imaginary statute of limitations.

18 years is NOT the statute of limitations, it's the MINIMUM time you have to occupy the property BEFORE you can make the prescription claim.

As I stated, there's no time you can wait out to PREVENT prescription if you're still allowing the people to occupy the property.

The time stops accruing as soon as it becomes permissive (which appears to be now) You’re nuts if you think a claim that has already ripened is good for eternity.


Allowing people to occupy the land is the opposite of what it takes to gain a right to seek an easement by prescription. Allowing equals permissive use as long as it is clearly stated as such.

 

[HRZ]

According to online sources, it's 18 years in OP's state, which is why OP's neighbor made reference to renting for 18 years.

However, OP just bought the property last year. We do not know if the previous owners granted permission to neighbors, or was oblivious to others' use of the property. Open and notorious non-permissive use, uninterrupted for 18 years seems to be what is required.

If there was a prescriptive easement at the time of purchase, it apparently was not listed in the title, otherwise I think OP would have mentioned it.[/QUOT

My goof, OP is in CO where the timeline as to prescriptive easement is 18 years, not 5 as in CA. Person using that path WO permission on open uninterrupted basis for 18 years might have the basis for claiming a prescriptive easement ...be careful!

 

[FlyingRon]

Please avoid using insults to try to make your point. It doesn't help. As I previously made in this whole thread, yes permissive use is an absolute thwart to people claiming prescription. You were the one who made vague statements about a limitations period applying, and I'm till not understanding what claim from what period of time you are asserting.

If you're talking about time from when the STOPPED them from occupying the land to the time they made a claim of prescription, that is one thing. But I'm not understanding the context for you making your original statement.

 

[not2cleverRed]

Please avoid using insults to try to make your point. It doesn't help. As I previously made in this whole thread, yes permissive use is an absolute thwart to people claiming prescription. You were the one who made vague statements about a limitations period applying, and I'm till not understanding what claim from what period of time you are asserting.

If you're talking about time from when the STOPPED them from occupying the land to the time they made a claim of prescription, that is one thing. But I'm not understanding the context for you making your original statement.

Thank you for the reality check.

If there is a gap in non-permissive use, then it's not continuous, and it seems that continuity is a required element.

 

[HRZ]

Whether a class of constant uninterrupted users wo permission such as a stream of renters from one unit can meet the burden of proof is one best left to the pros....would seem to me that one would need to assemble a continuous link of users /witness to prove uninterrupted usage for 18 years. Not merely that some owner had tenants for 18 years some of which may have used that pathway wo permission. And over 18 years there may well have been interruptions in occupancy of that LLs unit.

Again I'd be seeking a pro to advise me. And if in doubt, close off the pathway to everyone

 

[justalayman]

Thank you for the reality check.

If there is a gap in non-permissive use, then it's not continuous, and it seems that continuity is a required element.

But it is continuous, until now. It appears the nonpermissive use has lasted long enough to allow a valid claim for a prescriptive easement. That right of claim does not die instantly upon the change from nonpermissive to permissive use. It will remain viable for some period of time.

Ron is missing the fact there appears to be a viable claim for PE now. The intent within my statements is to forestall the claimant actually seekimg to enforce that right until such time it has withered into not being a viable claim. That is the time limit I am speaking of when I speak of a statute of limitation.

Basically stated, if the claimant sued today, based on the time (presuming all other requirements have been met), the claimant will recieve a formally issued easement. Ron seems to be arguing that right of claim lasts forever. If nothing else, the rule of equities refutes that claim but I’m certain there is something more formal in some limitation of time the claimant has to make their formal claim before losing that right.




As to the renters issue: I don’t believe there is a claim based on the renters. There have been similar styles of issues in California where the public at large sued for and won an easement to access ocean beaches over private land. The access was historically used by the public at large and the suit was brought by reprsentwtives of the public at larger. The issue at hand is a different matter where a very limited group would be the claimant and there is no basis for permitting an easement for that very limited group an easement in the manner they have been granted in California.

While the property owners that have earned a claim by their use could sue for an easement, one must remember a prescriptive easement is almost always granted to the specific claimant and it is not transferable to another party.

 

[justalayman]

Again I'd be seeking a pro to advise me. And if in doubt, close off the pathway to everyone

and that is precisely cause a claimant to assert their claim and make the easement a formal recorded easement and is exactly what I am suggesting the op not do in an attempt to cause their claim to die, without the claimant realizing it.

 

[HRZ]

THis is not in CA nor about the public at large. There is a serious question of if a stream of rental users can establish the necessary time clock of 18 years or if the time clock is reset to zero with each new rental user. A series of property owners " might " be able to successfully argue tacking in CO but a series of non owners ??

State law varies a lot and where i bought property the law requires a written tacking in deed....but CO may well differ.

And we have yet to address if the prior owner granted permission for such passage and or if the passage was interrupted at times in the past.

A valid claim for a prescriptive easement will not die just because it is not recorded .but interrupting the usage before ALL the required elements of prescriptive easement come together most likely resets the time clock to ZERO .

IF factually the prior owner had granted permission to all the HOA members to pass by that route that may put ice water on the prescriptive easement issue .
Perhaps the new owner was "invited" by HOA to give permission as had the prior owner.

OP needs more history / facts .

AND he needs counsel up front to identify the likely cards he holds and how to play them .

 

[justalayman]

THis is not in CA nor about the public at large. There is a serious question of if a stream of rental users can establish the necessary time clock of 18 years or if the time clock is reset to zero with each new rental user. A series of property owners " might " be able to successfully argue tacking in CO but a series of non owners ??

State law varies a lot and where i bought property the law requires a written tacking in deed....but CO may well differ.

And we have yet to address if the prior owner granted permission for such passage and or if the passage was interrupted at times in the past.

A valid claim for a prescriptive easement will not die just because it is not recorded .but interrupting the usage before ALL the required elements of prescriptive easement come together most likely resets the time clock to ZERO .

IF factually the prior owner had granted permission to all the HOA members to pass by that route that may put ice water on the prescriptive easement issue .
Perhaps the new owner was "invited" by HOA to give permission as had the prior owner.

OP needs more history / facts .

AND he needs counsel up front to identify the likely cards he holds and how to play them .

no kidding dude. Can you not read and comprehend that that was used only as an explanation of a situation where a group has sued as a group%? It was intended to differentiate the situation at hand from that type of action


And I specifically said this is nit that type of situation so you repeating that is reslly kind of foolish




The funny thing is while you said it is not that type of situation, your advice specifically classified it as precisely that type of situation. You reslly need to make up your mind as to whether you believe it becomes a renters at large issue (which is what you have done by stating it involves a stream of renters over the years) or it isn’t such as you stated in your opening line.



Ownership of land has nothing to do with a prescriptive easement. It is the continued use by a party (and in very limited situations such as the California issue where is it an associated group) for the requisite period of time in a specific manner and use that allows the claim. In the situation at hand the use by the tenents was not adverse in the case of the renters becasue they were given permission by their landlord. Granted, he did not have the right to grant permission but it matters not: the renters believed they had a right to use the pathway as directed so their use was not adverse which is a primary requirement to make a claim for ap.

The land owner in this case has no standing to sue on behalf of his tenants because they have not given him the authority to engage into the action on their behalf. He would have to sue in his own right.

So, if there is a suit it is not based upon the renters themselves but the fact the land owner has used the land in a specific manner and that is one that I believe may have a chance to succeed (if all other requirements are met)