McLear-Gary v. Scott Got It Wrong: Court Confused Adverse Use with Adverse Possession

Abstract

It may seem obvious that adverse use and adverse possession are different, but a 2018 California Court of Appeal case, relying on statements in a number of older cases, conflated the two to reach a result that is clearly wrong. The question was whether an easement appurtenant to a neighboring property was extinguished when the servient owner installed and maintained a gate that blocked access to the easement for five years, the statutory period for obtaining or extinguishing an easement by prescription or an estate by adverse possession.

The court fell into error when it characterized the servient owner’s action as adverse possession of the easement rather than as adverse use that interfered with use of the easement. As non-possessory interests, easements are neither acquired nor extinguished by adverse possession but by adverse use (prescription). California requires timely payment of property taxes to acquire an estate by adverse possession, but not to acquire an easement by prescription except in the very rare cases where an easement has been separately assessed. The court wrongly concluded that the easement had not been extinguished because the servient owners did not pay their property taxes on time during the five year period.

Keywords: easements extinguishment by adverse use or prescription, adverse possession, tax payment requirement for adverse possession