What is a Prescriptive Easement?

U. Ahern

A prescriptive easement refers to using another person’s property without taking ownership of it. The easement occurs when the piece of property is used openly, in a clearly observable fashion, continuously and without the owner’s permission. Also known as adverse use, the length of time to establish a prescriptive easement varies by locality. State law may require anywhere from five years to more than 30 years to create a prescriptive easement.

A shortcut through private property to a public beach can become a prescriptive easement.
A shortcut through private property to a public beach can become a prescriptive easement.

Open and clearly observable use is key in determining if a prescriptive easement exists. A fence erected several feet over the property line is a common example of this. Prescriptive easement may be established if the fence is placed in the open, not in secret, and clearly observable by all. This is common in rural areas if a fence is put in without an updated survey. The fence may sit partially on the property of an adjoining landowner.

Continuous use is another required ingredient in determining if a prescriptive easement exists. The use must be uninterrupted for a specific number of years. This is called hostile use, not because it stems from anger, but because it is without the permission of the property owner. This type of use is technically trespassing because it is the unlawful, or without permission, invasion of another person’s property.

A prescriptive easement may exist between individuals or members of the public and an individual property owner. Members of the general public may take a shortcut over private property to access a public beach or park. If the shortcut is used openly, in a clear and observable fashion and without the permission of the owner, it can become a prescriptive easement. The continuous use clock ticks even if the property changes hands. If Owner A holds the property for five years, owner B has the property for one year and owner C has the property for two years, the continuous use would amount to eight years.

If the current owner is concerned about use of his property becoming a prescriptive easement, a letter of agreement or prohibition could be used. In order to stop all use, a letter prohibiting further use is sent to individual users or posted on the property. A letter of agreement could permit continued use, but add limitations and clauses for discontinuing use.

Unfortunately, a prescriptive easement does not show up in title searches. It is only revealed in practice. When purchasing a piece of property, it is very important for the survey and actual fences to line up. Determine if there are signs of continuous use by someone other than the owner. Demonstrated use of the property is as important as what is legally recorded in writing.

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