“I live in San Francisco and own a property with two houses on it, one behind the other. Although the rear house is on the plat maps as a separate structure since the 1920’s and is taxed by the assessor’s office, it is still classified as an in-law. I have been here 25 years and have been using a cement path on an adjacent vacant lot to access the rear house. I have a tape recording of a phone conversation where the previous owner of the adjacent lot states that he never gave permission for me to use that path. I believe I have satisfied all the qualifications for a prescriptive easement. The adjacent lot owner also used this path for access to a house behind the vacant lot. He now plans to tear down that house and build condos with direct access from another street. Given skyrocketing real estate values, I’m sure he would spend a lot to be free of my unofficial easement. The only other access to my rear house is through the basement of the house in front, but it would make moving large pieces of furniture, e.g. bed or couch impossible and would make life miserable for the occupants of both houses. Question: I want to move soon and rent out both houses. Would I reduce my chances for keeping the easement if the other owner decides to bring a lawsuit and I don’t live here?”
Interesting question! In theory, it should not make a difference. The easement (assuming it exists) benefits the property, not the person who owns the property, or who lives in it. In practice, however, would your defense to the hypothetical lawsuit be better if it were you suffering or your tenant? Hard to say. It’s probably not worth changing your life plans just for that, even if it did.
One thing to keep in mind, though: You gain a prescriptive easement by using it for a particular period of time (in your case, 5 years). If you stop using it for the same period of time, the easement goes away. So if your tenants don’t use the easement, the clock is ticking on losing it.