A claim or defense that is frequently raised in litigation involving easements is that an easement either was created or terminated (“extinguished” is the term most often used by the courts) because a party adversely possessed that easement. Code of Civil Procedure section 325 specifies the requirements for proving adverse possession: a hostile claim of right made continuously for a period of at least five years by substantially enclosing, cultivating, or improving the land, and timely paying all taxes on that land. A recent case from our state Appellate Court, the First District Court of Appeal, stands as a word of caution against any litigant who would try to have a trial court ignore any of these requirements.
 
In McLear-Gary v. Scott, No. A146719, the First District reversed the judgment of the trial court in Mendocino County. Deborah McLear-Gary had crossed her neighbors’ property on foot for many years, until in 2006 when her neighbors the Scotts replaced a wooden gate with a metal one that cut off her access to the pedestrian trail in dispute. The trial court found that although Ms. McLear-Gary had, prior to 2011, enjoyed the easement rights she claimed in her suit, the Scotts had met all the elements for adverse possession, including that the Scotts paid their property taxes, and therefore had extinguished McLear-Gary’s easement over their property.
 
Not so fast, said the Court of Appeal. The evidence at trial showed that the Scotts had fallen four years behind on their property tax payments before bringing them current with a lump-sum payment. The appellate court rejected the Scotts’ many arguments that the lump-sum payment was “timely,” instead following the plain language and legislative history of Code of Civil Procedure section 325(b) that the late payment was untimely, and that McLear-Gary’s easement was not extinguished by adverse possession. For the Scotts, their late payment of their property taxes proved to be far more costly than any late fees or penalties from the Assessor’s Office.
 
Janssen Malloy LLP’s attorneys are well-versed in real property law and can assist you either in protecting yourself against claims of adverse possession, or in evaluating your own such claim.