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 (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449-50):
1. Use of the land was continuous and uninterrupted for five years.
2. Use of the land was open and notorious. This means the owner had actual or constructive notice that someone was using his land.
3. The use was hostile. This means it was done without the permission of the owner.
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 (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054; Code Civ. Proc. §§318, 325, 328):
1. Possession of the land was under claim of right or color of title;
2. Possession was actual, open, and notorious;
3. Possession was adverse and hostile to the true owner;
4. Possession was continuous for at least five years; and
5. The person paid all taxes assessed against the property during the five-year period.
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.
Although common areas cannot be sold, they have value. Their taxable value 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 can not be met by a claimant. Such was the ruling in Nellie Gail Ranch OA v. McMullin.
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