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.
Let’s explore the details of an easement by prescription and how it might impact your ownership privileges.
What Is An Easement By Prescription Or Prescriptive Easement?
An easement by prescription, or prescriptive easement, is a legal process by which a person who frequently uses a property they don’t 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.
The length of time required 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.
What Is Prescriptive Easement Vs. Adverse Possession?
Prescriptive easements are often considered a form of adverse possession. While they’re similar, they differ in what the trespasser is allowed to use the property for. If an easement by prescription is in place, the trespasser only has the right to use the property for a specific purpose. With adverse possession, the trespasser is granted full rights to use the property as the owner would, and the trespasser could even become the property’s legal owner.
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Prescriptive Easement Example
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.
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 if property owners 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 a trespasser might end up with the legal property rights.
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, there have not been attempts to hide it from them.
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 lets trespassers claim ownership rights by openly and continuously using the land for a significant time period.
In general, adverse use goes beyond crossing property lines 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.
Pros And Cons Of Prescriptive Easements
There are benefits and drawbacks to prescriptive easements. Whether it benefits you or sets you back depends on your personal situation. Here are some potential pros and cons to consider before buying a house with a prescriptive easement.
Pros
- This arrangement can provide clear rules for how a property should be used, which can help you avoid conflict between neighbors.
- Depending on your state’s laws, you may be entitled to compensation for the use of your land.
- Buyers can use an easement by prescription as a negotiation tool to request a lower purchase price of a home.
Cons
- A prescriptive easement could lower the value of a property.
- You could be held liable for any trespasser incidents on your property.
- There may be less interest in a property that has an easement by prescription when it comes time to sell.
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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’s relatively easy to prevent an easement by prescription. If someone makes a claim for a prescriptive easement, document the steps you’ve taken to prevent trespassers. 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.
Here’s a complete list of actions you can take to prevent a prescriptive easement:
- Post “no trespassing” or privacy notices
- Build a fence or other obstacle
- Grant written consent to your neighbor for the usage
- Give verbal permission to the trespasser to use the land
While taking action on your own is a good start, consider getting a real estate attorney involved to make sure you’re 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.
Should You Buy A House With An Easement By Prescription?
When it comes to buying a house with 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 easement entitles a neighbor to walk on a trail at the back of your property, that may be acceptable. But if the easement will prevent you from building a fence necessary for your safety, you might think twice about buying the property.
If you’re still unsure about purchasing a property with a prescriptive easement, work with a real estate attorney. They can help you wade through the legal jargon to determine exactly how an easement will impact your ability to use the land.
The Bottom Line
If you’re 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’re 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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Sarah Sharkey
Sarah Sharkey is a personal finance writer who enjoys diving into the details to help readers make savvy financial decisions. She’s covered mortgages, money management, insurance, budgeting and more. She lives in Florida with her husband and dog. When she's not writing, she's outside exploring the coast. You can connect with her on LinkedIn.
