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What Is Prescriptive Easement?


Jul 04, 2020 by Laura Agadoni

There are many types of easements, and a prescriptive easement is perhaps the most juicy, if you will, because it involves an easement gained through unauthorized, hostile means. If the residents of CHOP in Seattle were to remain in place, unchallenged, for 10 years, for example, they might be able to claim a legal right to use the area because of a prescriptive easement.

What's an easement?

An easement is a legal right to use someone else's land. Think utility companies having access to a strip of grass on the outskirts of your property. The utility companies don't need to let you know before they dig up part of your yard because they have an easement that allows use of your land for a specific purpose, typically to lay utility lines. Utility companies have a type of easement called a commercial easement.

Prescriptive easement defined

A prescriptive easement, like all easements, is a right one person has to use another person's land. But with a prescriptive easement, that right was gained by antagonistic means. The only way someone can acquire a prescriptive easement is by using someone's land for some purpose, such as growing a garden, with all the following conditions being met:

  • Adverse: Using another person's land.
  • Hostile: Use of another person's land without the authority to do so. If the owner knows of and allows the occupation, then prescriptive easement cannot take place.
  • Exclusive: The landowner is not possessing the occupied land; only the trespasser is.
  • Open and notorious: The occupier must be using the land out in the open without concealing what they're doing.
  • Uninterrupted: The trespasser must not have a gap in use of the property; they must maintain continuous possession.
  • Continued: The trespasser must continue the occupation for a certain length of time, usually between five and 20 years, depending on the state.

It's usually difficult to prove all those elements, and for good reason. It should be difficult for someone to simply lay claim to real property just because they want it.

Prescriptive easement can lower property value

A prescriptive easement has the potential to be a big problem for a property owner since it's gained by hostile means, unlike an easement by agreement, for example, which involves both parties, generally resulting in a fairer result for everyone.

But because a prescriptive easement involves one person using land without permission, the owner could have an unpleasant situation on their hands, and one that could potentially lower their property value, maybe even significantly, from not having use of part of the land.

Where prescriptive easement is most likely to occur

Most prescriptive easement cases happen in rural areas, usually when the landowner doesn't realize that someone else has been using their land. This often happens when a fence is put up on the neighbor's lot, for example. Oftentimes this is done by accident and not intentionally, but in some cases, the unauthorized land use was intentional.

Commercial property

A prescriptive easement can happen with commercial property too, as illustrated by this example.

California restaurant owners won a 2004 court case when they claimed the right to a prescriptive easement against a neighboring property. Since 1974, the restaurant owners had been using the neighbor's (then a bank's) parking lot to receive truck deliveries. When the bank sold its property, the new neighbor challenged the restaurant's right to use the parking lot for deliveries... and lost: Once an easement is created by meeting all the criteria, it continues, even with new owners.

Takeaway: When you're considering buying property -- commercial or residential -- find out whether there's an easement, prescriptive or otherwise, that would limit the use of that property. If there were, you would need to be okay with it or find some workaround, because the easement stays with the land.

How dominant and servient estates work regarding easements

Using the restaurant case from above, we can demonstrate how dominant and servient estates regarding easements work, which is a significant part of the easement process. The California restaurant owner became an easement holder by gaining a prescriptive easement that allowed for continued use of the bank's parking lot for deliveries.

The restaurant owner, therefore, owns the dominant estate of the parking lot delivery area; the restaurant owner benefits. The owner of the neighboring property (the bank) that was allowing the truck to make deliveries from its property owns the servient estate, meaning a property that serves a neighboring property.

Terminating an easement

Whenever an easement is granted, whether it's a prescriptive easement or another type, it attaches to the land. The dominant estate can release, or terminate, the easement if they choose to, but the servient estate cannot end the easement.

A course of action if a servient estate wishes to terminate an easement would be for the servient estate to file a lawsuit and possibly go to trial court. The servient estate could win or lose. In the above restaurant case, the servient estate lost.

Prescriptive easement vs. adverse possession

The same prescriptive easement conditions (adverse, hostile, exclusive, open and notorious, uninterrupted, continued) must be present with adverse possession as well as with prescriptive easement.

The main difference between adverse possession and prescriptive easement is that adverse possession applies to a person having an ownership interest, while a prescriptive easement involves only the right to use, not own, the land.

The theory behind adverse possession is that because land is scarce, if the owner is not using their own land and doesn't care enough to check their own property for years on end, they should give up that land to someone who is putting it to better use.

How easements are created

Easements can be created three different ways:

  • By agreement: Two parties agree that one party will grant the other party land for a specific purpose. Sometimes the person who wants the land use will pay the other party. Common easements by agreement include utility easements and easements of necessity, such as when one person needs to use another person's driveway to gain access to their own land.
  • By adverse use: (prescriptive easement) taking over land without permission.
  • By condemnation proceedings: This happens when the government takes private property for public use through eminent domain.

Easement vs. license

The main difference between an easement and a license is that a license attaches to a person, and an easement attaches to land.

For example, two neighbors become friends. One neighbor has a fishing pond and allows the other neighbor to come over and use it to fish. The fishing pond owner has given the neighbor a license to use his land for fishing purposes. (A license can be oral as well as written.) If the neighbor with the license moves, any new neighbors would not have a license to use the fishing pond, as the license attaches to the person and not the land.

If, on the other hand, the fishing pond were a neighborhood feature and the only access to it was through one person's land, then an easement could be granted that would attach to the land, meaning that whoever moved into the dominant estate (the neighboring property) would have access to the fishing pond through the servient estate's land (the property with the fishing pond).

How to avoid buying property with a prescriptive easement

You can take measures to avoid buying property with a prescriptive easement. First, get the property surveyed so you'll know the exact boundaries. Then, thoroughly inspect the property, looking for signs of use. This can be accomplished by walking the property, looking at aerial views, and interviewing neighbors.

Another method to protect yourself would be to buy title insurance. If you do discover you have a prescriptive easement after buying the property and you have bought title insurance, the insurer can pay you for damages.

How to stop a prescriptive easement claim

If you can catch the trespasser in the act and tell them, orally and in writing, to stop using your land, then the person needs to leave and should not be granted a prescriptive easement. If you don't mind the neighbor using your land, you could perhaps grant that person a license to use the land, and perhaps the license could be revocable.

If you do mind and want the person to leave, after formally asking, it's a good idea to take some extra measures to protect yourself, such as posting a "No Trespassing" sign on your property on the portion of your land in question. Take a photo with the date for proof. If possible, you might want to fence in your land.

The catch is you must object to the adverse possessor before the time limit for your state kicks in. Each state has its own statutory period for when prescriptive easement takes place. It's five years, for example, in California, seven years in Georgia, 10 years in Washington and New York, and 20 years in Alabama. So check the law for your state.

The bottom line

It's important to determine whether there are any easements on property before you buy, because if there are, it could significantly lower the property's value. Keep in mind that checking for prescriptive easement isn't always foolproof since the arrangement is often unrecorded. Knowing what prescriptive easements are, how to do your due diligence, and how to protect yourself can at least put you in a better position if you're facing a prescriptive easement on your property.

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