A prescriptive easement is the use of someone else’s property without owning it. It requires open, observable, and continuous use without the owner’s permission for a specified period. A letter of agreement or ban can prevent it, but it doesn’t appear in title searches.
A prescriptive easement refers to using another person’s property without assuming ownership. An easement occurs when the property is used openly, clearly observably, continuously, and without the owner’s permission. Also known as adverse use, the length of time required to establish a prescriptive easement varies by location. State law can take anywhere from five years to more than 30 years to create a prescriptive easement.
Open and clearly observable use is critical to determining whether a prescriptive easement exists. A fence erected several feet above the property line is a common example. The prescriptive servitude can be established if the fence is placed in the open, not hidden, and clearly observable by all. This is common in rural areas if a fence is put in without an updated survey. The fence may be partially on the property of an adjacent landowner.
Continued use is another necessary ingredient in determining whether a prescriptive easement exists. Use must be uninterrupted for a specified number of years. This is called hostile use, not because it results from anger, but because it is without the owner’s permission. This type of use is technically inappropriate because it is the unlawful or unauthorized invasion of another person’s property.
A prescriptive easement may exist between individuals or members of the public and a single property owner. Members of the general public can take a shortcut on private property to access a public beach or park. If the shortcut is used openly, clearly and observably, and without the owner’s permission, it can become a prescriptive easement. The clock of continued use is ticking even as ownership changes hands. If owner A holds the property for five years, owner B has the property for one year, and owner C has the property for two years, the continued use would amount to eight years.
If the current owner is concerned that the use of his property becomes a prescriptive easement, a letter of agreement or a ban could be used. In order to stop all use, a no further use letter is sent to individual users or posted on the property. A letter of agreement might allow continued use, but add limitations and clauses for discontinuation of use.
Unfortunately, a prescriptive easement does not appear in title searches. It reveals itself only in practice. When buying a piece of property, it is very important that the relief and the actual fences line up. Determine if there are any signs of continued use by anyone other than the owner. Proven use of the property is as important as what is legally recorded in writing.
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