The Key to Understanding Prescriptive Easement

If you own a piece of property, you have the right to use it as you see fit, right? Not exactly. In some cases, other people can gain the right to use part of your property without your permission. This is known as a prescriptive easement, and it’s one of the more confusing aspects of property law.

What is a Prescriptive Easement?

A prescriptive easement is a legal right to use somebody else’s property, usually a portion of it, without the owner’s consent. The idea is that if you use somebody’s property for a long enough time without their consent, you can establish a legal right to keep using it.

In other words, you can “prescribe” a right to use someone else’s property if you use it openly and without permission over an extended period of time. The key is that the use has to be open and visible, so that the real owner has a chance to object if they want to.

A prescriptive easement is different from an easement by grant, which is a right that’s given to somebody explicitly, usually in a deed or other legal document. A prescriptive easement is also different from an easement by necessity, which is a right given to you by law because you can’t access your property without crossing somebody else’s land.

The legal requirements for a prescriptive easement vary from state to state, but a typical requirement is that the use has to be continuous and uninterrupted for a certain number of years, usually at least five. The use also has to be open and notorious, meaning that the property owner has to be aware of it or should have been aware of it. Finally, the use has to be hostile, meaning that it has to be without permission or against the will of the property owner.

Types of Prescriptive Easements

There are two main types of prescriptive easements: affirmative and negative.

An affirmative easement is a right to use somebody else’s property for a certain purpose, such as to access a road or a lake. For example, if you’ve been using your neighbor’s driveway to access your property for more than five years, you may have established a prescriptive easement for that purpose.

A negative easement, on the other hand, is a right to prevent the owner of the property from doing something. For example, if you’ve been using your neighbor’s land to block their view for more than five years, you may have established a prescriptive easement to prevent them from building anything that would block your view.

Establishing a Prescriptive Easement

To establish a prescriptive easement, you need to prove that you’ve been using the property openly, continuously, and without the owner’s permission for the required amount of time. In most cases, this means that you’ll need to show evidence that you’ve been using the property for at least five years.

You’ll also need to show that the use was hostile, meaning that it was without the owner’s permission or against their wishes. You may be able to do this by showing that the owner was aware of your use of the property but didn’t try to stop you.

Finally, you’ll need to show that your use of the property was open and notorious, meaning that it was visible and could have been observed by the owner. You can do this by showing that your use of the property was obvious or that the owner should have known about it.

Limitations of Prescriptive Easements

Prescriptive easements have some limitations that you should be aware of. First, they only allow you to use a portion of somebody else’s property, not the whole thing. Second, they only last as long as the specific use that you established the easement for. For example, if you established a prescriptive easement to access a road, you can’t use it for anything else, like parking your car.

Third, there are some things that you can’t establish a prescriptive easement for. For example, you can’t establish a prescriptive easement to access somebody else’s property if there’s already a public right-of-way to get there.

Finally, prescriptive easements can be terminated if the owner of the property takes action to stop you from using it. For example, if the owner puts up a fence to block your access to their property, your prescriptive easement may no longer be valid.

Conclusion

Prescriptive easements are a confusing but important aspect of property law. If you’ve been using somebody else’s property for a long time, you may have established a right to keep using it. However, there are specific requirements that you have to meet and limitations that you need to be aware of.

If you’re considering trying to establish a prescriptive easement, it’s a good idea to talk to a real estate attorney who can advise you on the specific laws in your state and help you navigate the process.

A prescriptive easement exists when someone uses a property for a given period of time without the consent or permission of the owner of that property. A prescriptive easement can be utilized in any property that is private, not that of any government organization or authority. The prescriptive easement becomes active after a certain period of time has passed with the use of the property continuing without the consent of the owner. After this period of time passes, a prescriptive easement is given over the property. If anytime prior to this time period passing, the owner grants permission for the easement, then the prescriptive easement is abolished.

In each state the property laws vary, so in this case, the time period required of the prescriptive use of a property will vary as well. Some usual time periods of prescriptive use would be terms of ten or twenty years. A prescriptive easement must be clear and known to both parties, especially the owner of the property where the easement occurs. The use must also be uninterrupted, not capable of being discontinued,  or prevented by the owner of that property. Once the owner interrupts the use of the property whether by clear disapproval, or by using barricades such as fencing, the easement can not exist.

An example of a prescriptive easement would be property owner using a part of his neighbor’s property, to travel across as a means of accessing perhaps a side road that isn’t in front of that owner’s house. The neighbor notices it but never stops it, so it becomes a walkway for them to alternately exit the property. The neighbor (land owner) does not tell the “trespasser” at this time to stop doing so, or blocks off his property with a fence or similar structure. If this goes on for about ten years (pending the property laws), without the neighbor stopping the travel across the property, then that person will be granted a prescriptive easement over his neighbor’s property.

At any point during this use, the owner of the property has the full right to prohibit this use when he sees it, and notify the “trespasser” of his prohibition, banning them from traveling across the property any further. It is crucial that the property owner be completely and utterly aware of the use of his property for this matter, because by waiving his rights and not interrupting or banning the use, the prescriptive easement will be granted. If the person using the land, sneaks through it at night perhaps, or when the neighbor cannot notably witness the matter, then it does not constitute for a prescriptive easement in due time.

A prescriptive easement is continuous and will last through the possession of it, should its holder choose to sell the property. The easement would shift to the new owner, so that they can exercise its entailments and use the land as the previous owner. This is a form of an appurtenant easement, where the holder would be the dominant tenement and the transfer regulations apply the same way.