What Is An Easement By Prescription?

An easement by prescription gives someone the legal right to use your land without your express permission. While this process often takes decades, it’s for someone without ownership rights to gain the privilege of using your land for a specific purpose.

Let’s explore the details of an easement by prescription and how this legal term might impact your property ownership privileges.

If someone openly uses your land without permission for an extended period of time, they might have the legal grounds to pursue an easement by prescription. Essentially, this easement would allow the person without ownership rights to continue using the property for a specific purpose.

What Is Easement By Prescription?

An easement by prescription, or prescriptive easement, is a legal process where a person who frequently uses a property they do not own gains the legal right to continue the usage. Prescriptive easements are granted when usage is obvious (or should be) and continuous over a period of time set by the state.

As a property owner, an easement by prescription could allow others to use your property in a way you might not agree with. Even if you do agree with the usage, selling your property to the next owner might be more challenging.

For example, let’s say that your property borders a beautiful lake. If someone begins to use your property to access the lake on a regular basis without your permission, they could be laying the groundwork for an easement by prescription. The beachgoer, and others in the community, might continue the pattern for years.

When the longtime owner sells the property, the new owner decides to put up a fence. At that point, the beachgoer might make the claim for an easement by prescription. If the claim is successful in court, the beachgoers could continue their use of the property and prevent the new owners from building a fence.

The length of time required usage to make a successful prescriptive easement case varies based on state laws. But in general, the usage must continue for at least 10 to 20 years to grant someone a prescriptive easement.

How Does An Easement By Prescription Occur?

Easement by prescription doesn’t happen overnight. Although it might take years, an easement by prescription can happen easily to property owners who don’t take action against trespassers. Before a prescriptive easement can be issued, the trespasser’s use must meet a specific set of criteria.

Let’s take a closer look at how someone might start as a trespasser and end up with the legal right to continue using the property.

Open Use

Open use, sometimes called notorious use, means that the trespasser made no effort to keep their usage a secret. In fact, it might be common knowledge in a community that the land is available for a specific purpose. For example, a footpath to get to the beach from the road across someone’s property might be used openly.

In most cases, the owner themselves may know about the use. But even if the owner doesn’t outright know about the usage, they probably should have known.

Continuous Use

The usage must be continuous over many years. Without continued use, the case for an easement by prescription weakens.

For example, let’s say the community widely knew about the footpath to the beach. The path might not be used in the winter season. But if the usage continues on a year-to-year basis, then the continuous use condition is satisfied.

Adverse Use

Whenever someone who isn’t the owner uses a property, it’s generally considered a negative situation. Adverse use gives trespassers an opportunity to claim ownership rights by openly and continuously using the land for a significant period of time.

In general, adverse use goes beyond using the property to access a lake or take a shortcut. Instead, adverse use usually involves the trespasser using the land in a way reserved for owners. For example, someone using your land to raise livestock without permission would be considered an adverse use.

Hostile Use

Hostile use of a property doesn’t need to involve unfriendliness. Instead, hostile use is explicitly using the property as an owner would without asking for permission. If someone is using your land without permission, it’s considered hostile use.

How To Prevent Prescriptive Easements On Your Property

A prescriptive easement can be an inconvenient legal issue. It might cause hiccups when you try to sell the home or allow people to use your property in a way you might not agree with.

The good news is that it is relatively easy to prevent an easement by prescription. Here’s a list of actions you can take to prevent a prescriptive easement:

• Post no trespassing or privacy notices
• Grant written consent to your neighbor for the usage
• Give verbal permission to the trespasser to use the land
• Build a fence or other obstacle

If someone makes a claim for a prescriptive easement, documentation of the steps you’ve taken to prevent trespassers is helpful. The act of granting written permission is especially useful because it means the land use isn’t hostile. Since hostile use is a requirement for prescriptive easements, this can stop any claims in their tracks.

While taking action on your own is a good start, consider getting a real estate attorney involved to make sure you are covered.

Does A Prescriptive Easement Transfer With The Sale Of Property?

Yes. In general, a prescriptive easement transfers with the sale of the property.

The prescriptive easement should show up when a prospective homeowner runs a title search. If you have a prescriptive easement on your property or on a property you are planning to

Should You Buy A House With An Easement By Prescription?

When it comes to easements by prescription, there’s no rulebook on how to proceed. At first glance, you might not want to purchase a home with any easements. But when it comes to an easement by prescription, it’s helpful to narrow in on the property usage before passing on the home.

For example, if the prescriptive easement entitles a neighbor to walk on a trail at the back of your property, you might find that acceptable. But if the easement will prevent you from putting up a fence you deem necessary for your safety, then you might want to think twice about purchasing the property.

If you are on the fence about purchasing a property with a prescriptive easement, consider working with a real estate attorney. They can help you wade through the legal jargon to determine exactly how the specific easement will impact your ability to use the land.

The Bottom Line

If you are buying a house, an easement by prescription doesn’t have to be a deal-breaker. But it’s worth taking a closer look at the details of the easement to make sure you are comfortable with the situation.

A real estate attorney can help you understand the details of the situation. If you decide that the prescriptive easement usage is acceptable, then you can move forward with the home purchase.

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