What are Prescriptive Easements?

What are Prescriptive Easements?


Some of us may have used a property we do not own. But what if there comes a time when we no longer have access to it? Take for example; you are driving your car across your neighbor’s land to take a short cut. Then, your neighbor feels the need to keep unwanted intruders off his/her property as more and more drivers in your neighborhood drive across the land every day.


Before you get mad at the owner, remember that people are entitled to keep unwanted intruders away from their house or property especially when some of the trespassers do not bring any good to the owner. Going back to the scenario, it is a trespass if you are driving across your neighbor’s land without the owner’s permission especially if you are using the land as an owner would use it.


If your neighbor wants no one driving across his/her land except for him/her and those people with access over the land, then you cannot object with that decision as you have no right over the property. But if the owner permitted you, then we call that an easement given to you.


What is an easement? It is a right to use the real property of another without possessing it. Easements are important to some property owners, as without them they may find themselves isolated or unable to enjoy their property for their intended use. The easements can be in a variety of ways including easements implied from prior use, easements implied from necessity, statutory ways of necessity, express easements, and easements by prescription. However, this article will focus on easements by prescription or “prescriptive easements.”


What is a Prescriptive Easement?


A prescriptive easement is a legal concept that allows a person to use someone else’s property. The easement occurs when the piece of property is used, in an observable fashion, continuous and without the owner’s permission. Usually, this type of easement is created when someone uses the land for entry, such as a road, beach path or shortcut. To acquire a prescriptive easement, the state law may require anywhere from five years to more than 30 years of uninterrupted use of the property. The length of time required to establish a prescriptive easement depends on the state where the property belongs.


Elements of Prescriptive Easement

A person is granted an easement by prescription if all required elements are met. The party is given the right to use a portion of someone else’s property for a particular use under the following conditions:


  1. Adverse and under a claim of right


Adverse means that the user acts without the permission of the owner and under the property interest of the owner. Usually, if the user would give rise to a trespass, this aspect would be satisfied. The best way to defeat a prescriptive easement is for the landowner to permit it. The owner of the easement “under a claim of right” means that he or she specifies a right to use the easement. Generally, this allows the easement owner to do more than use the easement for a prescriptive period.


In the case of Felgenhauer, the bank argued that the adverse factor had been removed in 1988 when the then-manager decided to put the gate in the dividing fence and to permit the restaurant’s delivery trucks to continue to pass through the lot. The act may not be adverse to the owner of the property if the owner has given the consent. How didn’t this consent defeat the prescriptive easement, then? It is because the court discovered that the prescriptive period had been met before 1988, and the easement had already been established. The consent of the owner to use that has already been mastered will not extinguish the right to use it.


Also, it is worth mentioning that when an easement is being used by the general public, the owner of the easement must take a specific step in demanding the right to use the easement. Furthermore, the mere use of the property on its own is not enough to create a private prescriptive easement; instead, the claimant must conduct some independent act to show to the owner the claim of the adverse person. This rule makes it more difficult to create a prescriptive easement if the public uses the easement.


  1. Actual, Open and Notorious


The use of the property must be actual, open and notorious. Given this condition, the person requesting an easement must have used the property and that its use was clear enough to give actual or constructive notice to the owner. Constructive notice is given when a hypothetical rational landowner was notified even though the actual notice was not delivered to the owner.


For example in the California case, one party wanted to create an easement by prescription that will allow them to cross over a neighbor’s property with their motorcycles. But, no one had ever seen a motorcycle on the ground, and, after the crossings, the party had hidden their motorcycles. The court held that as “underground” usage and did not meet the open and notorious element. Thus, the court would not grant a prescriptive easement.


Also take note that while the user makes actual use of the property, the use of the property does not be exclusive. The use of another may not disqualify a prescription claim. However, as the Felgenhauer case indicates, a prescriptive usage will not be prohibited because the owner still uses the easement land.


  1. Continuous and Uninterrupted


The easement use of property under this element must not stop then start again. Given this condition, there shall be continuous and uninterrupted property usage for a specified period. For example, suppose Road A had been used for 3 years, and then Road B had only been used for 1 year. After the year had ended, Road A had been used again for two years. This usage set up is not continuous and interrupted. Therefore, no easement was established before this certain case. Moreover, to have a “continuous and uninterrupted” use of property, there needs to have access for at least five years or so depending on the locality of the property.


  1. Hostile Use


“Hostility” means that the use was without the owner’s consent. Then, it was a trespass. The word “hostile” specifies that the person making a claim can be the owner, in contrast to the real owner’s recognition or subjection of the property. This element is somewhat similar to the “claim of right.” The duty on the claimant is to prove that it has used the property in such a way as to make it known to the public that the claimant owns the land. 


The claimant’s usage must be adverse to the claim of the property’s owner. If the use is permissive, it cannot mature into a prescriptive easement because it is neither “hostile” nor “adverse” to the owner’s title. In this element, a “hostile” claim can be any of the following: making an honest mistake (like relying on wrongdoing), merely occupying the land (with or without understanding that it is private property), and/or aware of his or her trespass. 


Even if the owner is not actually in residence, he or she must use the land in some way to provide a prescriptive easement. With each element, the trespasser may obtain the property after the required years pass and then become the legal owner of the land, the building block or the entire estate. Applying for a title with the attached name given by petitioning the courts may be possible. 


Once the owner learns that the land is no longer his or hers, he or she may require bringing the trespasser to trial. It is possible to seek a remedy by hiring a lawyer, but the prescriptive easement may be maintained if there exist all of the elements.


Likewise, the owner must use the land in some way even if he or she is no longer residing in that property for the prescriptive easement to happen. Trespassers could obtain the property in the later years when all the elements are in place. Then, that the trespasser becomes the property’s legal owner. The property’s title may possibly be attached by the new owner’s name once petitioned to the courts. 


When the owner discovers that the property is no longer his or hers, he or she may need to take the trespasser to court. Through hiring a lawyer, it is possible to seek a remedy, but the prescriptive easement may hold if all the elements exist.

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