A prescriptive easement is a term used to describe an easement that grants the right to use property or land for a specific purpose, without permission from the landowner. It’s effectively the legal right of a party to use or cross another party’s land or property that would otherwise be considered trespassing. A variety of entities — including the government, private individuals, groups, companies, and law enforcement — can obtain different types of easements.
When you go to buy a house, you’ll likely want to perform a title search to ensure the property is free and clear. However, even if no liens exist on the property, you may see a prescriptive easement on the land.
But what is a prescriptive easement? Does it mean you can’t (or shouldn’t) buy the home? In this article, we’ll take a closer look at what prescriptive easements are, who can get one, and why they’re important to understand for new homebuyers.
The world of property easements
If you’ve heard the term “easement” before, it is probably related to the title search on a property you were either selling or buying. As property owners may know, an easement is an agreement between two parties for the right to use the land for a distinct purpose. The owner of the land retains the ownership rights, but the beneficiary of the easement gets to continue to use the land for that purpose.
Most of the time, easements will come up during title searches. You might realize that although you own the title of the real property, there is an additional easement attached to the title. There are many different types of easements, including:
- Easement appurtenant
- Permissive easement
- Utility easement
- Easement by prescription
- Easement in gross
- Private easement
- Easement by necessity
- Conservation easement
Who can get easements?
Easements can be granted to individuals, groups, companies, and the government. For instance, there might be a part of your land that overlaps with several government utility companies. Perhaps there is a shortcut through your property that would enable an ambulance to reach the destination more quickly. In this case, the government can use the power of eminent domain to enact an easement.
If children must cross your property on their way to school, or someone uses your property to access another road, they can all apply for easements. For those situations in which land or property is being used without the landowner’s outright permission, one can opt to obtain a prescriptive easement.
Prescriptive easements, also known as “easements by prescription,” are special easements that allow for land to be used by a group, company, or individual under certain conditions for a distinct purpose. Without an easement, these people could technically not be allowed on the land and be considered trespassers.
From a legal standpoint, the ownership of the easement goes to the holder of the prescriptive easement, not the owner of the land or property. What this means is that the owner of the property cannot unilaterally terminate or change the easement. Only the easement holder or court can enact a change.
A party can apply for an easement in prescription if the following terms are met:
Open and notorious use
It must be generally known by the property owner and the community that the property is being used by a third party on a regular basis. Simply put, you can’t be the only one who secretly uses the property, and no one knows anything about it.
There must be continuous use of the property over a period of time. For instance, maybe the property is only useful during summer, but if used every summer, this would qualify as continual use. The actual amount of time the property needs to be continually used will differ from state to state.
Adverse or hostile use
Adverse or hostile use is legal parlance to explain that the owner of the property didn’t invite anyone on the property, and therefore, the activity on the property is considered non-permissible. In other words, without an easement, the other party could be liable for trespassing. Adverse possession laws will differ from state to state.
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Prescriptive easement example
Let’s use Gavin, who has been living in the mountains of Idaho for the last ten years, as an example. When Gavin moved into his house, he realized that the promised infrastructure in terms of bridges and roads was not materializing for his planned community. In order to reach the highway, he needs to use a dirt road that runs over his neighbor’s property. The dirt road is well within the borders of his neighbor’s property.
If the owner doesn’t tell Gavin to stop, Gavin can then go to court and try to obtain a prescriptive easement. If the court grants Gavin this prescriptive easement, then he has the right to drive down that dirt road regardless of what the property owner thinks of it.
Permissive vs. prescriptive easement
Remember, one of the keys to obtaining a prescriptive easement is that there needs to be a distinct purpose. The distinct purpose of the dirt road for Gavin is that it allows him to reach the highway to go to work, as well as other locations in and around the community. If Gavin were just to enjoy joyriding on a dirt road owned by his neighbor, then he would not be able to obtain a prescriptive easement.
In another scenario, Gavin could have gone to the neighbor and had him agree to let Gavin use the dirt road. If this happened, it would be a “permissive” easement. This is the difference between a prescriptive easement and a permissive easement.
A prescriptive easement is granted without the permission of the landowner. It is irrevocable, as the prescriptive easement holder retains all of the rights. Although there is no ownership interest in Gavin’s neighbor’s land, Gavin will continue to use the property through the terms of the prescriptive easement.
How do you prove prescriptive easement?
You’ll need to prove adverse possession, meaning that the owner does not permit you to use the land. You then need continuation over a period of time, as well as open and notorious use. If you can prove these three requirements and have the supporting documents, you can obtain a prescriptive easement on a property owned by someone else.
If you’re looking at acquiring an easement by prescription for someone else’s property, it’s best to contact a real estate attorney.
What is the most common type of easement?
An “express easement” is the most common easement issued. In an express easement, the landowner grants the easement holder “right of way” access to a person’s property.
How many years does it take to establish a right of way?
The statute of time will differ from state to state in the United States. It’s best to consult with a lawyer who might be more familiar with your state’s laws.
- A prescriptive easement describes an easement that is granted for the right to use property or land for a specific use without permission by the landowner. It’s effectively the legal right of a party to use or cross another person’s land or property that otherwise would be considered trespassing.
- Easements are an additional right to use land without having an ownership interest. Governments, individuals, groups, and companies can all obtain easements.
- To obtain a prescriptive easement, one must prove open and notorious use, adverse use or possession, and continuation.
- The landowner does not give permission to the person applying for the prescriptive easement.
View Article Sources
- Easements — Utah Department of Commerce
- Easement vs. Right-of-Way (ROW) — City of Centennial
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