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Prescriptive Easements

prescriptive easement definition

What Is a Prescriptive Easement?

A prescriptive easement allows someone other than the original property owner to gain the rights to use a property. Prescriptive easements often arise on rural land when landowners fail to realize part of their land is being used, perhaps by a neighbor.

For example, fences built in incorrect locations often result in the creation of prescriptive easements. If a person uses another's real property for more than the time allowed by state laws on adverse possession (what's called the statute of limitation period), that person may be able to "derive an easement by prescription." In other words, you have a legal right to use the land.

Under adverse possession laws, the use of the land must be:

  • Open and notorious: It is obvious that the possession is taking place. This should have given the owner notice that their land is being used.
  • Actual: The person must be physically treating the land as though they own it.
  • Hostile: This doesn't mean adversarial. Instead, a trespasser meets this requirement if they are using the land with or without knowledge. They can either be doing it intentionally, or it can be by mistake.
  • Exclusive and continuous: The trespasser has used the land exclusively and continuously -- for a specified number of years as required by their state's laws. 

Prescriptive Easement Requirements

The time period for obtaining an easement by adverse possession does not begin to run until the one seeking adverse possession actually trespasses on the land. Thus, a negative easement cannot be acquired by prescription because there is no trespasser. 

The use of the easement must truly be adverse to the rights of the original owner of the property through which the easement is sought and must be without the landowner's permission. If the owner has given permission to use the land, the possession is not adverse.

There must be a demonstration of continuous and uninterrupted use throughout the time period prescribed by state law. If the use is too infrequent for a reasonable landowner not to bother protesting, the continuity requirement will probably not be satisfied.

"Tacking" the Time Requirement

Let's say you buy a piece of property that has a side entrance. To use the side entrance, you must travel through a part of your neighbor's property. The neighbor has never granted access to that piece of property. If you keep using the side entrance like the owners before you, you will continue the adverse use.

In cases like these -- where subsequent parties in the same position to the land continue to use the right of way adversely -- the time adds together to meet the required time period for adverse possession.

This situation is known as "tacking". Thus, a prescriptive easement doesn't need to be exclusive. It can be shared among several users over time.

Adverse Possession: What Not to Do

While you may be tempted to begin notoriously and openly possessing your neighbor's land, you may want to think again. Just ask the 22-year-old Albany man who was given a prison sentence for trespassing into another person's home and then filing phony deeds with the county clerk's office. He attempted to sell the property he didn't own. The moral of the story? Always speak with an attorney before attempting to create your own easement or take another's property.

Prescriptive Easement: Additional Resources

If you have additional concerns or questions after reading this article, you can continue your research right here by clicking on the links below. As always, it is wise to speak with an attorney in your state to understand local laws and any updates or changes.

Get Professional Legal Help With a Prescriptive Easement

There's nothing more stressful than trying to protect your rights to your real estate. You have to follow your state's laws, regulations, and restrictions. While the idea of adverse possession may sound confusing, it doesn't need to be. Learn more about this age-old real estate concept by speaking with a local real estate lawyer today.

Next Steps

Contact a qualified real estate to help you navigate land use issues including zoning, easements and eminent domain.

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