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Easements are a section of real estate law that outline the specific rights of landowners and related third parties. Easements allow other people or organizations 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 guide will legally define what is prescription in real estate and necessary elements to comply before an agreement can be established, and it will present real-world examples for your better understanding.

What Is an Easement by Prescription?

An easement in prescription 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 by prescription requirements.

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. Easement by prescription elements include 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

What is an easement by prescription on encroached land? It consists of four elements required to be met by law: (1) open and notorious enjoyment, (2) continuous and uninterrupted use, (3) no owner’s permission known as the “hostile” or “adverse” element, and (4) actual physical use of the property.

Let’s explain each of these elements with its example of easement by prescription.

1. Open & notorious enjoyment

An easement by prescription is not created if the property owner does not know about any actions happening at their property. Individuals seeking easement may not necessarily inform about easement orally or in writing but they can give a constructive notice. This means that the landowner has noticed the use of their property and has allowed easement to happen. 

2. Continuous & uninterrupted

The party seeking the easement is also required to prove that they have been using the property continuously. There is a significant difference between “continuously” and “constantly”.

Consistent and regular use is required in such example of easement by prescription 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.

The duration of continuous use, 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, 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.

3. Without permission

The use also has to be hostile to the landowner and conflict with the owner’s interest, for example, when 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 any elements of prescriptive easement.

4. Actual physical use

Without the physical use of the land, the courts may not approve of any claim of easement by prescription. Physical use typically means consistent activity on the property, like walking across a specific area, gardening, or building a fence. Physical use does not occur once but you need to demonstrate ongoing use throughout the duration set by state laws.

When you are aware of all these elements, you will manage to claim an easement by prescription or protect your property rights successfully. In either case, a consultation with a legal professional can guide you on the most effective strategy.

Easement by Prescription Examples

To better understand how easement by prescription elements 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

A typical scenario is when a person erects a fence accidentally beyond their property's legal boundary so it crosses into the neighboring land. If the neighbor was continually walking up and down the strip of the other land, this satisfies the continuous and actual element. 

As long as the rightful property owner does not allow using this strip of land, the non-owner may secure a prescriptive easement once the duration under state law has passed. This legal accord, however, does not give the adjoining resident the right to encroach upon the entire property, but rather the small piece of land that lies between the property boundary and the fence.

2. Driveway access

Another example could be if a person uses their neighbor’s driveway to reach their own property without obtaining consent. For this use, the individual must not hide their actions, for instance, by only driving through the neighbor’s road when the landowner is absent or on vacation. Regardless, if the person has been using the driveway conspicuously and continuously without any objection or express permission, they might assert a prescriptive easement. This assertion would grant the neighbor the legal right to utilize the driveway, thus prohibiting the property owner from constructing a gate that would hinder access to the driveway.

Protecting Against Prescriptive Easements

Property owners often seek to safeguard their real estate from easements due to the risk of diminished value and restrictions on potential enhancements within their own territory; such encumbrances may infringe upon the proprietor's autonomy if they conflict with the stipulations of the easement.

Above all, a clear communication with trespassers regarding their unwelcome status on the premises is a key protective measure. Written notices are usually more efficient than verbal warnings because letters serve as a strong evidence in case of court interference. Another way is creating a written consent before any actions that outlines the property non-owner’s rights and the duration of the agreement. 

Final Thoughts

The easement by prescription real estate definition implies 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 elements of prescriptive easement 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. 

If the property owner decides to transfer their ownership rights, a general warranty deed would be helpful. This legal document helps the non-owner get the estate without liens, mortgages, and third-party ownership claims.

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