Key Decisions

September 2013 – Land Owners Obtained A Prescriptive Easement

(filed under: Key Decisions Archive | September 24, 2013)

Land Owners Obtained A Prescriptive Easement

King v. Wu
(Cal. Ct. of App., 2d Dist.), filed August 14, 2013, published August 14, 2013


Fred and Viola Fluckiger bought real property in 1960. Shortly after that, they poured a concrete driveway partly encroaching on the neighboring property. The strip of driveway on the neighboring property was approximately eight inches wide and ninety feet long.

In 1963, the Wus became the owners of the property neighboring the Fluckigers. They used it as rental property, renting it to a series of tenants over the years.

In 1994, Michael and Linda King bought the Fluckiger property. They used the concrete driveway for ingress and egress to their garage and for parking in the rear of the driveway.

In 2009, the Wus began constructing a metal guardrail over the strip of land that the Fluckigers and later, the Kings had been using.

The Kings filed a complaint seeking to quiet title over the strip of land and asserting claims for trespass and declaratory relief. The Wus’ answer asserted an affirmative defense, that the Wus had leased the property, and, therefore, did not have possession of the property until 2008.

The trial court granted a motion for summary adjudication in favor of the Wus on the Kings’ prescriptive easement and declaratory relief claims. It concluded that the Wus had established an affirmative defense because they or their predecessors had not been in possession of the property for five continuous years during the Kings’ and Fluckigers’ 49-year use.


The Court of Appeal reversed. It held that the Wus failed to meet their burden of proof because they could neither establish an affirmative defense nor demonstrate that the Kings had not obtained a prescriptive easement.

To obtain a prescriptive easement, the Kings or their predecessors must have used the property “for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.” However, the court found the Wus failed to negate any of these elements.

As to the Wus’ affirmative defense that they and their predecessors had not been in continuous possession of the Wu property for five years, the court held that California law does not require the actual owners of the adversely used land to have been in continuous possession for five years. As a result, the affirmative defense was no defense at all.


This is one more decision which emphasizes the absentee landlord can suffer legal consequences just as if the landlord was there everyday, closely watching the property.