Easement by Prescription: Legal Definition & Examples

Easements are a section of real estate law that outline the specific rights that landowners and third parties have to property. They allow other people or organizations the rights to use the land for a specified purpose without being the property owner themselves. There are several types of easement acquisitions, one of which is prescription agreements that focus on enjoyment and open use of properties over time.

This article will legally define easement by prescription, the requisite elements needed before an agreement can be established, and present real-world examples to better your understanding.

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What is an Easement by Prescription?

An easement grants a party – be that an individual, a company, or the government – the right to use land or property owned by another individual for specified purposes. There is no transfer of possession or ownership involved; the landowner maintains the title to the property while another party can use the land without requiring ownership. This is different from adverse possession laws which offer ownership along with exclusive usage rights to the encroached land. Moreover, landowners can also continue to use the land so long as their use doesn’t unreasonably interfere with the third party being able to use the land as specified in the easement.

These rights to property can be acquired in several ways, but prescriptive easements are only established if a party openly uses the land in question for several years without being granted the owner’s permission. They are centered around long-term use and enjoyment, a great example being a neighbor that drives over another’s property consistently for several years. By showing that this person or organization has enjoyed rights over the property continuously throughout an extended period, removal of these rights would be seen as an injustice. Legally, the person or organization can acquire an easement by prescription, which means they can carry on their activity even if the landowner disagrees with the use the party has over their property.

Easement by Prescription Elements

Easement by Prescription Examples

For an easement by prescription to be acquired on encroached land, four requisite elements are required to be met by law: (1) open and notorious enjoyment, (2) continuous and uninterrupted use, (3) without the owner’s permission, also known as the “hostile” or “adverse” element, and (4) actual physical use of the property.

  1. Open & Notorious Enjoyment

The enjoyment has to be of knowledge to the landowner and a prescriptive easement cannot be acquired if the landowner is unaware of the activity going on. This does not mean that the party seeking the easement has to have communicated either in writing or verbally with the landowner, but rather that they have given constructive notice. In other words, the landowner would have noticed the use and has openly let it happen.

  1. Continuous & Uninterrupted

The party seeking the easement is also required to prove that they have been using the property continuously. It is important to distinguish between continuously and constantly. Consistent and regular use is all that is required, such as a vehicle driving overland once per day or seasonally using the land each summer, rather than non-stop use. The continuous use over the property must also have not been interrupted by the landowner, with no confrontation or disputes over the activity in the past. However, if another party has interrupted the activity, this will not affect the ability to establish an easement.

How long the continuous use must have been occurring, known as a statutory period, is determined by state law and will vary between jurisdictions, but typically runs from five to 30 years. For example, in Colorado, the use must have been occurring over a period of at least 18 years. On the other hand, there is a statutory period of only 5 years in California. This time runs from when the person first started using the land for their enjoyment up to the present day.

It is also crucial to note that the time is cumulative. For example, say a person in California has been using a property owned by another individual for four years when it is sold and bought by a new owner. If the trespasser continues to use the property for another year they will have met the five-year statutory period. Likewise, if two subsequent parties used encroached land for 9 years each in Colorado, combined the 18-year prescriptive period will have been met and so legal means of access can be acquired. This latter scenario is known as “tacking” and means that a prescriptive easement is not exclusive, separating it from adverse possessions.

  1. Without Permission

The use also has to be hostile to the landowner and conflict with the owner’s interest, such as a trespasser using the land as an access route. For a prescriptive agreement to stand, the owner cannot have granted permission for anyone to carry out the activity on their property. For example, if an owner has signs positioned around their property stating that people have permission to cross, they have authorized it, meaning the non-owner cannot form a prescriptive easement.

  1. Actual Physical Use

The final element is the most straightforward – the land must be actually physically used by the person. Without the trespasser being physically located on the land, there is no option to claim an easement by prescription.

Easement by Prescription Examples

Easement by Prescription Elements

To better understand how easement by prescriptions can be used in a beneficial way to gain rights to property, it is best to look at real-world examples.

  1. Construction of a Fence

The most common example is where a fence is erected on the wrong side of the boundary line for a property so it crosses into the land owned by another individual. If the neighbor was continually walking up and down the strip of land which legally belonged to another, this satisfies the continuous and actual element. A fence being put up is also obvious to the owner of the other property, and so this accounts for the open element. So, as long as the landowner does not explicitly authorize the non-owner to use this strip of land, a prescriptive easement can be acquired after the number of years required by state law has passed. The agreement will not entitle the neighbor access to trespass on the entire property, but rather the small piece of land that lies between the property boundary and the fence.

  1. Driveway Access

Another example could be if a person uses their neighbor’s driveway to gain access to their property without permission. For this to be open, the user cannot be secretive about the use, such as only using the driveway when the homeowner is out of the house or away on holiday. However, as long as the activity has been happening knowingly without being interrupted or being granted permission, an easement of prescription could be claimed. This would grant the neighbor rights to use the driveway, and the landowner would not be able to erect a gate or any other blockade that would prevent the user from having access to the driveway.

Protecting Against Prescriptive Easements

Many homeowners wish to protect their property against easements as they have the potential to decrease the value of a property, as well as limit the home improvements owners can make on their own land if the work interferes with the rights outlined in the agreement.

There are several ways owners can do this, but the best is to be vigilant in watching for trespassers and communicating with them that they are unwelcome on your land. Any landowner that outright objects to trespassers being allowed on their land will protect themselves from easements of prescriptions. Written letters are more effective than verbal communication as they can be proven in a court of law. Alternatively, the homeowner may prevent the easement by consenting to the usage, which bypasses the hostile element. This will need to be a written agreement outlining precisely what rights the non-owner has to the property and how long the agreement stands for.

Final Thoughts

In this article, we have gone through the definition of an easement of prescription. This can be defined as the rights that non-owners have over property that belongs to someone else, which are established if the individual has been using the land for enjoyment continuously over a set period. For the acquisition of an easement, four requisite elements must be met, which can make the navigation of this area of retail law complex. Any lawyers working on prescriptive means of access also need to check the local laws of each US state, which outline the period of continuous use that applies in each case. 

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Product Content Manager at Lawrina. Yevheniia creates user interface copies for Lawrina products, writes release notes, and helps customers get the best user experience from all Lawrina products. Also, Yevheniia is in charge of creating helpful content on legal template pages (Lawrina Templates) and up-to-date information on US law (Lawrina Guides). In her spare time, Yevheniia takes up swimming, travels, and goes for a walk in her home city.

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