We are taking a look at a particular land use law and how a land survey plays a significant role in determining land use rights.
In part one we reviewed two case studies of a prescriptive easement on private land by individuals. Did you know the public can acquire rights to use private land?
There are many instances where the public perfected the use of private land through a prescriptive easement for access to a public street, park or beach. Currently, for example, on the California Coastal Commission’s (CCC) website there are five public prescriptive rights locations now under investigation.
The CCC is asking for help from the public to show the use of private land met the four criteria necessary for a prescriptive easement to get access to a beach. The CCC is working at making their case by asking the public if you had ever accessed the land by completing a questionnaire.
Can a public entity gain an easement for access rights over private land? Yes–the same criteria applies as for two neighboring private property owners:
- Use must be actual and open (there is actual and visible use)
- Use must be adverse to the owner (without permission)
- Use must continue for at least five years
- Use must not exclude the owner (the owner must have access)
In the two cases studies from part one and the example above of a public entity gaining rights of private land shows just one area of boundary law. The study of boundary law is complicated, but there are ways to protect yourself from a prescriptive easement.
Surveyors use a system of hundreds of thousands of control points that are each relative to other control points through a vast geographic system physically marked by a benchmark. With the use of GPS satellites and other electronic equipment, a surveyor can accurately discover the boundaries and other characteristics of a particular parcel of land.
There are six types of surveys: boundary, location, construction, topographic, site planning and ALTA/ACSM.
When purchasing land, a basic boundary survey is often obtained. But, these do not show details such as easements or encroachments. An ALTA survey is a detailed and expensive survey that shows all potential issues of a parcel.
Title insurance policies can protect a buyer against title issues, but a buyer would need to acquire the more expensive ALTA policy and not the basic CLTA policy for protection against prescriptive easements.
Ownership of land should include regular inspections of their land to find if anyone is using without permission.
If a use is discovered and the five-year period has not yet passed a property owner could post “no trespassing” signs as well as erect barriers to access. Written notice should be documented as well. But, these efforts could backfire so in some instances written approval may be the best way to control access.
If five years had passed first hire an attorney, but in some instances providing approval to use the land may be best with control still maintained.
Burt M. Polson, CCIM, is a local real estate broker specializing in commercial real estate. Reach him at 707-254-8000, [email protected] Sign up for his email newsletter at BurtPolson.com.