Updated on July 18, 2025
How to Stop Prescriptive Easement
Quick-Answer TL;DR
California landlords can stop a prescriptive easement by disrupting any one element before the five-year mark.
- Interrupt continuity —install a fence, gate, or other barrier.
- Remove hostility —grant written, revocable permission or record a Notice of Consent.
- Leverage Dieterich —the five-year clock does not run while the property is under lease because possession rests with the tenant.
Prescriptive easements are a powerful legal tool that can grant someone the right to use a portion of your property without owning it if certain conditions are met. In California, landlords must understand how long-term, unauthorized use of their property can evolve into a legally enforceable right. The landmark case Dieterich International Truck Sales, Inc. v. J.S. & J. Services, Inc. clarifies when the five-year clock starts for establishing these easements. This blog breaks down what prescriptive easements are, how they work under California law, and what every property owner should know to protect their rights.
What is a Prescriptive Easement?
Not sure what an easement is? Click here to read a general definition in our Schorr Law glossary
A prescriptive easement is a legal principle that allows an individual to obtain a legal right to use another’s property. In California, if an individual can demonstrate that:
- they openly and notoriously used the property
- continuously and uninterruptedly for five years, and
- did so under a claim of right
then the individual can obtain a non-exclusive right to use that property. Essentially, an individual who uses another’s property without permission can continue to legally use that property if they get a prescriptive easement.
For a broader understanding of easement types and how they’re handled under California law, visit our Easement Dispute page, where we break down common easement disputes and how our attorneys can help.
Defending Against Prescriptive Easements
As discussed above, there are three elements to establishing a prescriptive easement. An individual must prove all three elements to obtain a prescriptive easement. Therefore, defeating a prescriptive easement claim requires showing that the individual failed to satisfy just one of the elements. To defend against prescriptive easements, landlords must understand the legal thresholds that make these claims valid in California.
How California Law Addresses Prescriptive Easements?
In 1992, the 4th District Court of Appeal issued its opinion in Dieterich International Truck Sales, Inc., v. J.S. & J. Services, Inc. (Dieterich Internat. Truck Sales, Inc. v. J.S. & J. Services, Inc. (1992) 3 Cal. App. 4th 1601.) Dieterich provides valuable insight into when unpermitted use of a property starts to count toward the 5 year requirement for a prescriptive easement. (Id.)
In Dieterich, the Court held that an individual cannot assert a prescriptive easement against a landlord who is not currently in possession of the property. (Id. at 1611.) The Court reasoned that there are specific claims based on possessory interests and other claims that are based on ownership interests. (Id. at 1610.)
When Prescriptive Easement Claims Begin Under California Law?
If an individual seeks to bring a claim for a possessory interest, then the possessor can defend by filing an action for trespass. (Id.) On the other hand, if an individual seeks to bring a claim for an ownership interest, the landowner can seek recovery either by filing an action for trespass or with another cause of action, like waste. (Id.)
A prescriptive easement is a claim for a possessory interest in the property. To protect against this interest, the landlord must be able to bring a claim for trespass or ejectment. (Id.) However, a claim for trespass requires that the owner have a present possessory interest in the property that they want to protect. (Id. at 1608.)
Because a landlord who has rented out the property does not have present possession, the five-year period required for a prescriptive easement does not begin during the lease term. As a result, an individual cannot establish a prescriptive easement claim against the landlord during that time.
Takeaway from Dieterich
The takeaway from Dieterich is simple: if you are a landlord and you have leased out your property, no one can successfully establish a prescriptive easement claim against you while you are not in possession of that property. The ramifications of this are profound, especially for landlords with multiple properties leased out and an inability to keep an eye on everything that happens on the properties. Rest assured, the five-year clock for a prescriptive easement like all prescriptive easements in California does not begin until you regain possession.
If you believe someone may be asserting a prescriptive easement over your property, it’s critical to reach out to knowledgeable and experienced real estate counsel with expertise in complex easement disputes throughout California. At Schorr Law, our real estate attorneys have extensive experience handling prescriptive easements and a wide range of easement disputes. Whether you’re dealing with unauthorized use, access issues, or need to establish or challenge an easement, we offer the legal insight and strategic guidance necessary to protect your property rights in California
Contact Schorr Law at (866) 787-8459 or through our contact form here