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Prescriptive Easement. A prescriptive easement allows a trespasser to acquire the right to use the land of another without paying for it. To acquire a prescriptive easement over another's land, the following elements must be met: (i) use of the land was continuous and uninterrupted for five years; (ii) use of the land was open and notorious (the owner had actual or constructive notice that someone was using his land); and (iii) the use was hostile (without the permission of the owner). (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449-50.)

An easement is a right to use, not a right to possess. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296.) In Kapner v. Meadowlark Ranch Association, a property owner claimed a prescriptive easement over a common area roadway parcel owned by the Association and used the encroached area in a possessory fashion by building a fence over it. The Court of Appeal concluded the owner was claiming adverse possession of the property in the guise of a prescriptive easement so as to avoid the requirement to pay taxes. The Court denied plaintiff’s claim of prescriptive easement.

[T]he requirement for paying taxes in order to obtain title by adverse possession is statutory. (Code Civ. Proc., § 325.) The law does not allow parties who have possessed land to ignore the statutory requirement for paying taxes by claiming a prescriptive easement... Because Kapner enclosed and possessed the land in question, his claim to a prescriptive easement is without merit.” (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182.)

Adverse Possession. In California, a person can acquire legal ownership of another's land without paying for it. To do so, the trespasser must prove the following points: (i) possession of the land was under claim of right or color of title; (ii) possession was actual, open, and notorious; (iii) possession was adverse and hostile to the true owner; (iv) possession was continuous for at least five years; and (v) the person paid all taxes assessed against the property during the five-year period. (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054; Code Civ. Proc. §§ 318, 325, 328.)

In a common interest development, payment of all taxes on disputed common area is impossible for a claimant to establish since common areas are not separately assessed for taxes.

...all parcels owned by individual homeowners that make up the association are assessed property taxes based not only on the value of their separate lots, but also the value of their proportionate, undivided share of all common areas owned by their homeowners association. Common areas ...therefore have value and property taxes are levied against them; those taxes are billed to and paid by the individual homeowners. (Nellie Gail Ranch Owners Ass'n v. McMullin (2016) 4 Cal.App.5th 982.)

Their taxable value of common areas is reflected in the increased market value of members' properties created by common area pools, clubhouses, riding trails, parks, etc. Property taxes on common areas are, therefore, billed to and paid by all homeowners individually, not the association. (Lake Forest CA v. County of Orange.)

For example, if there are 100 lots, a member claiming adverse possession of common area pays his 1/100 share of the taxes through the increased value of his property. The remaining 99/100 shares of the common area taxes are paid by the other 99 homeowners through their own property taxes. As a result, the fifth element of adverse possession cannot be met by a claimant. Such was the ruling in Nellie Gail Ranch OA v. McMullin.

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