Easement by Prescription

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“Landowners and third parties have specific rights to property under easements, a section of real estate law. In addition to giving other people or organizations the right to use the land without owning it. These agreements allow them to enjoy and openly use the property for a specific purpose. Prescription agreements, for example, are easement acquisition that focuses on the enjoyment and open use of a property over time.”

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Easement by Prescription

To better understand easement by prescription, this article defines the law. Explain what needs to be in place before an agreement can be established and provide real-life examples.


Easements by prescription: What are they?

What is a prescriptive easement? It permits a party to use a particular piece of land or property another individual owns for a specified purpose. Whether that party is an individual, a company, or the government. Landowners maintain title to the property while other parties may use it without owning it.

It differs from adverse possession laws, which provide ownership and exclusive usage rights. Furthermore, landowners may still use the land so long as their use doesn’t unreasonably interfere with the easement’s requirements for the third party.


The property rights

It is possible to acquire these property rights in several ways. Still, prescriptive easements can only be set through open use of the property for several years.

A neighbor’s consistent driving over another’s property for several years is an excellent example of long-term use and enjoyment. An injustice would occur if a person or organization were to lose these rights if the person or organization had continuously enjoyed these rights for an extended period.

Obtaining an easement by prescription means the person or organization can continue to operate their activities despite the landowner’s disagreement with their use of the property.


What Is The Process Of Prescriptive Easement?

Innocent acts often lead to prescriptive easements – a driveway built over a neighbor’s line by accident years ago. A shortcut to the beach used by generations of school children. A third party could assert that they had a prescriptive easement on the property if the owner (or a new owner) suddenly tried to stop the usage. If they succeeded, the easement would be recorded on the property deed, thereby formalizing their use.


How to obtain a prescriptive easement.

Beebe v. DeMarco is an excellent example of how to obtain a prescriptive easement. From the late 1950s to the mid-1990s, the plaintiff consistently used an alley to access the rear of their property, openly and without authorization from the defendant (on whose land the alley ran).

Due to this, the plaintiff sued the defendant in 1994 for the erection of a fence to block access. As a result, the court found that the plaintiff had established a right to the land and ordered it to be demolished. It also enjoined the defendant from refusing access to the property, as they had no basis to disprove the easement.


Easement Prescription: How to Avoid It

A neighbor or other party can legally claim a prescriptive easement over your property if they have openly used it without your consent and your protest for an extended period. You need to use your property to prevent prescriptive rights from being gained.

Property owners must be able to precisely determine their property boundaries, use their property actively, and be aware of how their property operates to avoid the formation of prescriptive easements. This is why having a property survey with clearly marked boundaries is so important.


Obtaining a prescriptive easement on your land

To prevent your neighbor from obtaining a prescriptive easement on your land, follow these tactics:

  • Place trespassing and privacy notices.
  • Build a fence, a wall, or something else to block the view.
  • Authorize the neighbor to use the property (this creates a revocable license, which may bar later easement claims).
  • Obtain compensation from the users of the property.
  • Injunct those who are using the property.

The best way to deal with these situations is to avoid confrontation. Consult with a real estate lawyer before using any of these tactics.


What Is The Best Way To Create A Prescriptive Easement?

There are several ways to create a prescriptive easement:

  1. A continuous five-year usage of the property;
  2. The land owner can see the proceedings openly and in a well-known manner.
  3. Owners are hostile and adverse to them.


Easement by Prescription without Express Permission

You grant an easement by prescription to a trespasser if he continuously uses your land without your permission for five years without interruption, even though he does not own the land.

Your neighbor, for example, can get a prescriptive easement to use a path across your property that takes him to his hunting area for five years without your objection. The explanation is somewhat simplified, but the general principle holds.

However, he does have the right to use your land for wood access even though you have granted him a prescriptive easement.


Prescriptive Easement vs. Adverse Possession

The rules for acquiring prescriptive easements are similar to those for adverse possession. So, some legal authorities consider prescriptive easements a form of adverse possession. It is important to note that although both legal statuses arise through using property over a long period, their rights differ.

A prescriptive easement gives someone else a legal right to use the land, but only for a specific reason. For example, we can use it for a driveway, but it cannot be used for a garage or shed.

In contrast, adverse possession grants you full ownership rights, including the ability to build. In contrast, a prescriptive easement does not need a quitclaim deed or fee simple title.

It is also possible to share a prescriptive easement among many parties rather than holding it only.


A Prescriptive Easement’s Pros and Cons

What is an easement by prescription? It’s subjective to judge whether prescriptive easements are good or bad. Some people consider them suitable because they tend to reduce neighbor disagreements. Some states allow property owners to receive compensation for their use of their property, but the amount is usually nominal. Others believe they are wrong because they can reduce the value of their home.


A Prescriptive Easement’s Pros and Cons


You must remember, even if there is a prescriptive easement on your property, that you are still responsible for any accidents, injuries, or property damages that occur on your property. Adding you as an extra insured should be part of the license agreement if you grant it to prevent a prescriptive easement.


Ease by Prescription Elements

The following four elements must exist to get an easement by prescription on encroached land:

  • Famous and open enjoyment,
  • Continuous and uninterrupted use,
  • Without permission from the owner, also called the hostile or adverse element, and
  • Actual physical use.


A Notorious & Open Thrill

It is necessary for the enjoyment to be known to the landowner, and there can be no prescriptive easement if the owner is unaware of the activity occurring. There is no need that the parties seeking an easement have given constructive notice to the landowner, but rather, they have communicated in writing or verbally. The landowner is likely to have noticed the use and has openly permitted it to proceed.


Continual & uninterrupted

There is a distinction between continuously and constantly. The party seeking an easement must also prove they have used the property. As long as the land runs consistently and regularly, rather than non-stop, it does not need to run continuously.

For example, a vehicle that drives overland once daily or uses the land seasonally each summer is enough. There can be no easement if the landowner has interrupted the use of the property. An easement may also exist if another party has interrupted the use of the property, but not in that case.


A statutory period

In most jurisdictions, there is a statutory period of five to thirty years for continuous use. It depends on state law how long it must have been occurring. Colorado, for instance, requires 18 years for continuous use to exist. On the other hand, California only requires five years for continuous use. During this period, the people used the land for enjoyment until now.

The time spent on the property is cumulative. For example, suppose a person uses a property owned by another individual for four years and passes to a new owner. In that case, they will be subject to the cumulative time penalty. After another year of using the property, the trespasser will meet the five-year statutory requirement.

For example, if two subsequent parties in Colorado used the encroached land for nine years each. The 18-year requirement will have accrued, and access will be legal. The latter scenario, known as “tacking,” is when a prescriptive easement is not exclusive of adverse possessions, thus separating it from the easement.



Landowners can also prohibit use that is hostile to them and that conflicts with their interests, like a trespasser using the land for access. Owners cannot have granted permission for anyone to carry out an activity on their property for a prescriptive agreement to stand. A sign on an owner’s property stating people may cross indicates that the owner has authorized it. Which means a non-owner cannot form a prescriptive easement.


Use in actual practice.

Finally, the trespasser must actually use the land. Without physical access to the land, an easement does not exist.


Examples of Ease by Prescription

What is easement by prescription? To better understand how easements by prescription can help beneficially get property rights, a real-world easement by prescription example is best.


Fence construction: Example of easement by prescription

It is most common for a fence to cross into another individual’s property by erecting it on the wrong side of the boundary line. Continuous and actual elements are satisfied if the neighbor walks continuously up and down a strip of land that legally belongs to another. The owner of the other property can also see that the fence is going up, and so this accounts for the open nature of the property.

It is possible to acquire a prescriptive easement after a period stipulated by state law under the condition that the landowner does not expressly authorize the non-owner to use the land. By signing the agreement, the neighbor will not have the right to trespass on the entire property but only the tiny area between the fence and the property’s boundary.


Access to a driveway

It is also possible for a person to gain access to a neighbor’s property without their permission by using their neighbor’s driveway. A user can only use an open driveway when the homeowner is away or if they only use the driveway while the homeowner is away.

However, it is possible to claim an easement of prescription if the activity has occurred without interruption or permission. Landowners could not erect gates or blockades that would prevent a neighbor from using the driveway, thereby granting the neighbor rights to use the driveway.


What Is The Impact Of Prescriptive Easements On Homebuyers?

The prescriptive easement usually appears on a title search or abstract of the title. Like most easements, we can link it with the property (or “runs with the land”), regardless of its owner. When you buy a property, you don’t have to remove the existing easement, and actually, it may be challenging to do so. It comes with the territory, as it does with most easements.

Whether you should avoid a prescriptive easement is somewhat subjective, depending on your circumstances. You may like the easement or don’t want to upset your neighbors by disputing it.


Accountable for accidents or injuries

It is possible to be held accountable for accidents or injuries on your property despite the easement’s presence – plus, you are responsible for any damage caused by the users. Furthermore, you may be liable if you fail to respect the easement, which can reduce the value of a property. Of course, their use of the property may hinder you or bother a potential buyer.

If you do not like the easement (but still like the land), you may be able to negotiate a price adjustment. Alternatively, you can try to negotiate a written statement from the owner of the easement that you are not responsible for them or anyone using it. Ideally, you should narrow the search to a specific part of the property.


Bottom Line

It is best to consult an attorney to determine how the prescriptive easement will affect the property and what you intend to do with it. In case one of the users gets hurt while on your property, you should also consider extra home insurance liability coverage.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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