I recently filed a brief in the California Supreme Court on an interesting legal issue involving real estate.  I represented a client who was a real estate developer.  This developer bought vacant land in Los Angeles with the intent of building an office building on one lot and using an adjacent lot for parking to satisfy the City’s zoning and density requirements.

A neighbor who owned an adjacent commercial building, opposed my client’s application to the City for a variance to allow parking on the lot that was not zoned for that use.  A lawsuit followed.

In that lawsuit the neighbor claimed he had both an express easement and a prescriptive easement over portions of my client’s property.  We claimed we had the right to possess the vacant property and the neighbor’s parking on our property amounted to a trespass.

We won at trial and were even awarded damages by the jury for trespass.  We proved that the neighbor abandoned their express easement.  We also proved that the neighbor failed to establish a prescriptive easement because they did not show their use was hostile or adverse.  We claimed their use was permissive.  When use of property is made with permission of the owner of the burdened property, or by agreement with him, a user cannot acquire a prescriptive easement.

The neighbor filed an appeal in the Court of Appeals.  We appeared before the Court of Appeals and won there.

The neighbor then filed a Petition in the California Supreme Court.  The issue he raised was which party had the burden of proof on the issue of permissive use.  He claimed that we had the burden to show that the neighbor’s use was without permission and was indeed hostile.  There was a split of authority in the lower courts on that issue and this neighbor thought the issue needed to be decided by the Supreme Court.

Our position was regardless of who had the burden of proof, we proved that the use was permissive.

We are waiting for the Supreme Court to decide if they want to hear more on this issue with further briefing.