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Adverse Possession and Prescriptive Easements

Posted by Bradley Schuber | Dec 14, 2023

Board members have a duty to protect the property rights of their association. Occasionally, neighboring property owners may attempt to acquire property rights over association property through adverse possession and prescriptive easements, which board members should safeguard against.


Adverse possession is a legal concept that allows a person to obtain legal title to someone else's land without purchasing it. To acquire title by adverse possession in California, a person must show (1) they possessed the land under a claim of right or title, (2) the possession was actual, open, and notorious, (3) their possession was adverse and hostile, (4) the possession was continuous for at least five years, and (5) they paid all taxes assessed against the property during that time.


A prescriptive easement, a similar legal concept, allows a person to acquire the right to use land owned by another without paying for that right. To obtain a prescriptive easement over another's land in California, a person must (1) use another's land continuously and uninterrupted for five years, (2) use the land open and notoriously, and (3) show that the use of the property was hostile (i.e., without permission).


These two property rights are the subject of a recent unpublished case, Harris v. Dollar Point Association (2022 WL 17074093). In this case, Plaintiffs Michael and Anne Harris (“Harrises”) purchased a residential property in the Dollar Point Association, Inc. (“Dollar Point”) subdivision. Dollar Point is a private, non-profit recreational association that Mr. and Mrs. Harris were members of by owning their property. Dollar Point owns property situated adjacent to the Harrises' property. Dollar Point's property (“Lot 62”) has a beach area on the shore of Lake Tahoe, tennis courts, open space, and a parking lot for use by its members.


The Harrises purchased their home in 1996, believing that a 30-foot-wide strip of land on Lot 62 behind their backyard (“encroachment area”) was part of their property. After purchasing their home, the Harrises learned that the encroachment area is part of Lot 62. According to the case, from 1999 through 2013, the Harrises made, maintained, and removed certain improvements in the encroachment area in connection with various conversations with Dollar Point.


In 2017, Mr. Harris wrote to Dollar Point complaining that their privacy and security were being affected by foot traffic on Lot 62. Mr. Harris explained that his neighbors had turned their home into a rental and that renters were constantly walking from the rental house to the tennis courts and beach area along the border of Lot 62 behind their backyard.


To remedy this concern, Mr. Harris proposed improving the encroachment area to deter foot traffic. On September 24, 2018, the board members inspected Lot 62 to consider Mr. Harris' improvement proposals. During their visit, they did not observe any of the improvements proposed by Mr. Harris.


In October, without seeking permission from Dollar Point, Mr. Harris improved the encroachment area by planting two willow trees, installing drip tube irrigation for the two willow trees, and placing some rocks between the end of his neighbor's fence and the willow trees. These improvements were designed to deter foot traffic on Lot 62 behind their backyard.


On November 1, 2018, about two weeks after installing these improvements, Mr. and Mrs. Harris sued Dollar Point, alleging that they adversely possessed the encroachment area and that they had created a prescriptive easement over the steps and path adjoining the encroachment area to the parking lot. In response, Dollar Point denied these allegations and filed a cross-complaint to enjoin Mr. and Mrs. Harris from installing or maintaining any improvements on Lot 62.


After a bench trial, the trial court found in favor of Dollar Point. It held that Mr. and Mrs. Harris could not prove adverse possession because they did not demonstrate exclusive possession of the encroachment area for a continuous and uninterrupted five-year period. The trial court also held that the Harrises failed to prove they had a prescriptive easement because the Harrises, like other members of Dollar Point, had permission to use the steps and path to the parking lot. Lastly, the court enjoined the Harrises from wrongfully encroaching on Lot 62 or interfering with using the steps. The Harrises appealed the trial court's decision; however, the 3rd District Court of Appeal affirmed the trial court's ruling.


The Dollar Point case is a good reminder of a board's duty to protect an association's property rights. Board members and management should perform property inspections periodically to look for any unapproved improvements to association property. When encroachments occur, board members should seek legal advice and promptly communicate with the encroaching property owner(s) to resolve these issues.

About the Author

Bradley Schuber

Owner / Shareholder Practice Areas: Community Association Counsel, Civil Litigation Brad Schuber owns and is the sole shareholder of Kriger Law Firm, APC. He oversees the firm's operations and has an extensive background in representing residential and commercial associations in southern Califo...


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