What Is a Prescriptive Easement?

A prescriptive easement allows someone other than the property owner to gain the right to use a property. Prescriptive easements often arise in rural areas when landowners don't 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. Suppose a person uses another's real property for more than the time allowed by state laws on adverse possession (the statutory period). In that case, that person may be able to "derive an easement by prescription." In other words, they may gain a legal right to use the land for a specific purpose.

Under adverse possession laws, a claimant's use of the land must be:

• Open and notorious use: It's obvious that the possession is taking place. This should have given the true owner notice that someone is using their land.
• Actual: The claimant must physically treat the land as though they own it with full property rights.
• Hostile: This doesn't mean adversarial. Instead, trespassers meet this requirement if they use the land with or without knowledge. They can either be doing it intentionally or by mistake.
• Exclusive and continuous use of the property: The claimant has used the land exclusively and continuously — for a specified number of years as required by their state's laws.

Remember that the adverse possessor will not gain an ownership interest in the private property until:

1. They meet your state's specific laws on how adverse possession is effective against a true owner's rights and
2. They have met all the above requirements, as they apply under state law, during the statutory period.

Prescriptive Easement Claim Requirements

The period of time to get easement rights by adverse possession does not begin until the person seeking adverse possession actually trespasses on the land. So, you can't get a negative easement by prescription if there is no trespasser.

The use of the easement must be:

1. Adverse to the rights of the original owner of the property through which the easement is sought and
2. Must be without the true owner's permission

If the true owner has given consent for a claimant to use the land, the possession is not adverse.

There must be a demonstration of continuous and uninterrupted use throughout the prescriptive period prescribed by state law. If the use is too infrequent for a reasonable landowner not to bother protesting, it probably won't satisfy the continuity requirement.

'Tacking' the Time Requirement

Let's say you buy a property with a side entrance. You must travel through a part of your neighbor's property to use the side entrance. The neighbor has never granted access to that piece of property. If you keep using the side entrance like the owners before, 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 up to meet the required time period for adverse possession.

This situation is known as "tacking." So, a prescriptive easement doesn't need to involve exclusive use by one person. It can be shared among several users over time.

Adverse Possession: What Not to Do

While you may want to begin notoriously and openly possessing your neighbor's land, think again. Just ask the 22-year-old Albany man who went to prison for trespassing onto another person's property and then filing phony deeds with the county clerk's office. He tried to sell property he didn't own. The moral of the story? Always speak with an attorney before creating your own easement or taking another's property.

More Resources on Easements

If you have more concerns or questions after reading this article, you can continue your research by clicking on the links below. They offer more information that may be valuable for easement holders and grantors. As always, speak with an attorney in your state to understand local laws and any updates or changes.

• Easements
• Easement Basics
• Express and Implied Easements

Get Professional Legal Help With a Prescriptive Easement

Trying to protect your rights to your real estate causes a lot of stress. 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 law concept by speaking with a local real estate lawyer today. A real estate attorney can advise you and protect your rights.