California Real Estate Practice Exam

All of the following are essential elements to claim an easement by prescription, EXCEPT:

1. Claim or right

2. Open and notorious use for 5 years

3. Payment of taxes for 5 years

4. Use is hostile to owner

The correct answer is: Claim or right

The correct reasoning for this question revolves around the specific legal requirements to establish an easement by prescription. For a claimant to successfully assert an easement by prescription, they must demonstrate several key elements, one of which does not specify a formal claim or right, but rather focuses on the nature of their use of the property. Open and notorious use for a certain period, payment of taxes, and the hostile nature of the use relative to the property owner are all crucial components of establishing a prescriptive easement. The requirement for "open and notorious" use emphasizes that the usage must be apparent and recognizable, which enables the property owner the opportunity to notice and possibly challenge that use. The payment of taxes requirement ensures that the user is taking responsibility for the property in a way that reflects commitment to it being used as if it were their own. Finally, the "hostile" use indicates that the claimant is using the property without permission from the owner, which is critical in establishing a claim against the interests of the property owner. Thus, while a claim or right may support the position of someone believing they have a right to use the property, establishing an easement by prescription does not hinge on having a formal or previous acknowledgment of that claim.