Real Estate Terms

Prescriptive Easements in Real Estate

When looking to buy a house, unexpected things can happen. You might discover during the home-buying process that the property you’ve made an offer on has an easement attached to it. Easement rights are shared with nearby landowners. Easements come in a variety of shapes and sizes. This article will explain what a prescriptive easement is, how it is created, whether it is beneficial or harmful, and how to prevent it.

What is a Prescriptive Easement?

A prescriptive easement, sometimes known as an easement by prescription, is a legal arrangement that allows someone to access someone else’s property for particular reasons. Easements by prescription arise when a person repeatedly and openly use a portion of another person’s property without the landowner’s permission.

Easements by Prescriptive exist through the legal principle of Adverse Possession.

State statutes specify the number of years and circumstances required for such an easement. If the use is consistent with the needs of the service and indicates a continuity of purpose, it may be sufficient to create a prescriptive easement.

Understanding Easements

Generally speaking, an easement is a right held by one person to use the land for a specific purpose, such as driving through someone else’s property. A prescriptive easement is a more specific type of easement.

As described above easements by prescription arise when a person repeatedly and openly use a portion of another person’s property without the landowner’s permission. Not all easements work this way, just prescriptive easements.

Prescriptive Easement Requirements

For a prescriptive easement to be granted, numerous requirements must be completed. The use of the easement must be in direct conflict with the rights of the original owner of the property, and it must be done without the landowner’s approval. Possession is not adverse if the property owner has the authorization to use the land.

There must be proof of continuous and uninterrupted use for the period set by state law. The continuity criteria will likely not be met if the usage is too rare for a reasonable landowner to bother protesting.

Generally speaking, all occupations of the property must be:

  • Hostile: The person seeking adverse possession is doing so without the permission of the owner. Obviously, if the owner gave permission adverse possession would not be necessary.
  • Actual: The person seeking adverse possession must have physical possession.
  • Open & Notorious: The person seeking adverse possession must occupy the property in a manner that is open and obvious.
  • Exclusive: The property must be occupied exclusively by the person seeking adverse possession.
  • Continuous: All elements must be met at all times through the statutory period (this period is defined state by state).

All of these conditions must be met for a prescriptive easement to be granted through adverse possession.

It’s worth mentioning, that the time limit for acquiring an easement by adverse possession does not begin to run until the person requesting the easement actually trespasses on the property. Because there is no trespasser, a negative easement cannot be gained by prescription.

Example of Prescriptive Easement

Let’s take a look at some examples. Imagine you purchase a property with a side entrance, meaning you must travel through a portion of property owned by your neighbor to access the side entrance. A neighbor has never permitted that piece of property access. If you continue to use the side entry as the previous owners did, a claim for adverse possession can occur, and a prescriptive easement could exist.

Prescriptive easements often exist in rural areas when landowners are unaware that their property is being used. The offending neighbor becomes the dominant estate owner when an easement is recognized. Unless the original owner of the property, known as the servient estate owner, sues the dominant estate owner, the dominant estate owner is the only one who can cancel the easement. Even so, the claimant has a chance of losing the litigation.

Are Prescriptive Easements Good or Bad?

It depends on how define good OR bad. The use of prescriptive easements is usually justified. They lessen the likelihood of neighborly conflict. Like we mentioned before, let’s say you have a long driveway that goes across your neighbor’s property to get to your house. You can still use the property under a prescriptive easement.

If you own land or purchase a home with a prescriptive easement, it may not be something you want. The easement remains in place even if the land is sold. It can lessen the property value, which can be beneficial when purchasing the property but detrimental when selling it.

How Can You Avoid Prescriptive Easements?

It is easier to avoid a prescriptive easement than to remove one already established. A property owner or a potential house buyer can prevent them in two ways.

The most straightforward method is to prevent the trespasser from entering your property in the first place. This necessitates you noticing and disputing the constant use. This is the most aggressive method, which may sour your relationship with your neighbors.

Giving the trespasser permission to use the property is another option to avoid a prescriptive easement. This avoids the adverse and hostile requirements in this situation, eliminating any concerns about establishing a prescriptive easement.

Even if the owner is unaware of a specific hazard, they can provide permission to unknown users in general. A sign that says “private property” is an example of this as permission to cross the person’s land is granted, but it can be revoked at any time.

What to Know for the Real Estate Exam

For the real estate exam, you will need to know a legal arrangement that allows someone to access someone else’s property for particular reasons called a prescriptive easement. An easement holder may have this right because they have to use their neighbor’s land to access their own. This type of legal agreement varies by state law or local laws and can be for a certain period of continuous use. If you are unsure how to handle a prescriptive easement, consult with an attorney to further understand it from a legal perspective. Keep this all in mind, and you will nail your exam!

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