What Are Prescriptive Easements And Are They A Deal Breaker?
Andrew Dehan5-minute read
November 24, 2022
One of the last hurdles you’ll encounter when you’re in the process of buying a home is the title search. It may seem like a mere formality, but problems revealed by a title search can sideline the sale or purchase of a home. Fortunately, in most cases, those problems sound more alarming than they are, and easements generally fall within that category.
Let’s take a look at what easements are, what a prescriptive easement is and what an easement means for you as a new homeowner.
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What Is A Prescriptive Easement?
A prescriptive easement, also called an “easement by prescription,” is a property right acquired when a person – lawyers call them trespassers – uses a property that they don’t own in a way that is called – again, by lawyers – open, adverse and continuous. Sometimes you’ll also hear the words “hostile” or “notorious,” words whose legal meanings are different from our conversational use of the terms. The trespasser’s use of the property must continue for a period of years as defined by state law.
Easements by prescription are created when a trespasser – a person without an ownership interest in the property and without the permission of the property owner – continually and openly uses a portion of another person’s property for a specific reason, generally as a shortcut or to access an attraction like a lake or a school.
There are several types of easements. There are easements that allow public services and utility companies to access your property as needed.
You can also sell an easement to someone. For example, suppose you have a lakefront home, and your neighbors across the street need lake access. You could sell them the right to use your property for the specific purpose of gaining lake or dock access. That easement would be recorded with the property and would turn up on a title search when you sell the property.
An Example Of A Prescriptive Easement In Practice
It’s much easier to understand if you consider the classic example of a shortcut across a property that children use to get to school. No one asked the long-time property owner for permission, they just seemed to do it for as long back as anyone can remember.
Now let’s assume that the house is sold to a new homeowner. They erect a fence that would cut off access to the shortcut. The schoolchildren could assert a claim that they had a prescriptive easement on the property that prevents the new owner from erecting a fence or other obstruction to the shortcut. If they’re successful, that easement would be recorded with the deed and would turn up in a title search.
Let’s take a look at how the law would evaluate this situation.
Open And Notorious Use
If the owner was well aware that children were using their property, and the entire school community seemed to be aware, year in and year out, that they should use this shortcut, then the use of the property was notorious.
Although school children did not use the path during the summer, they returned every year when school reopened. Therefore, the use was continuous, even taking into account the summer break.
Adverse Or Hostile Use
Historically, laws consider any non-permissive use of property by a trespasser to be an adverse or hostile use. In fact, all a homeowner has to do to thwart the creation of the easement is to give their explicit permission for the use of the property before the easement is created by the passage of time.
If the homeowner knew of the trespass and did nothing to stop it, it’s an adverse use.
Is An Easement By Prescription A Deal Breaker When You’re Purchasing A Property?
There’s no need, generally speaking, to be alarmed by easements that turn up in title searches. In fact, almost all U.S. homes have at least one and probably several easements on their property.
However, when an easement is discovered, you should discuss the matter in depth with the real estate attorney handling your closing and make sure you completely understand how the easement affects your use of and plans for the property.
It’s important to understand that prescriptive easements are attached to the deed. That means that regardless of who owns the property, they must not prevent a person’s exercise of the easement.
If you’re a very private person, you might not want to proceed with the purchase of a home that allows strangers access to your property every day. On the other hand, if the incursion on your property seems minimal, it might not be a concern to you going forward.
Prescriptive Easement Vs. Adverse Possession: What’s The Difference?
A prescriptive easement is a property right that is held by someone other than the property owner – in our example, schoolchildren – to use a property in a very specific way: to get to and from school. The property owner with this prescriptive easement does not have to allow members of the public to use the shortcut, nor can schoolchildren use the property for any other purpose.
With adverse possession, the trespasser uses the property in a way typically reserved for property owners – for example, by putting up a fence to exclude trespassers or contain livestock – in the same open, notorious and continuous manner that we discussed above. If they comply with state laws on adverse possession, the trespasser becomes the outright owner of the property.
This most frequently happens in rural areas, when a landowner fails to notice their property being used. One example of adverse possession is when a neighbor constructs a fence on the land. If this encroachment isn’t noticed or dealt with in a certain period of time, the neighbor may establish their ownership of the land they had been encroaching upon.
The rules around how adverse possession occurs and how long it takes vary widely by state law. You should consult a real estate attorney immediately if you’re involved in an easement dispute.
Are Prescriptive Easements Good or Bad?
Whether they’re good or bad is entirely in the eye of the homeowner. If you find the existence of an easement makes the property unattractive, you’ll be glad you found out about it before buying the home.
You may be able to use the easement to negotiate a last-minute price adjustment or other concession from the seller. Of course, when you sell the property, you may be asked for a similar discount.
If there’s a dangerous condition on your property, you may be held liable if someone is injured because of it. The extent of your liability will depend on the laws of your state. You may also want to consider additional insurance coverage for general liability should a trespasser become injured on your property.
How To Avoid Prescriptive Easements
Avoiding a prescriptive easement is easier than removing an established prescriptive easement. There are two ways a property owner or a new home buyer can avoid them.
The easiest way is to stop the trespasser from using your property in the first place. If a school is opening in your neighborhood and you’re concerned that students will be cutting across your property, you can put up a fence to prevent a claim of right from ever developing.
The other way to avoid a claim of right is to give your consent to those who use the property. Just post a sign that says, “Private property. Permission to cross land is revocable at any time.” This simple measure defeats the prescriptive easement requirement that the use is hostile or adverse.
The Bottom Line: The Law Prefers Active Use Of Property
Real property law encourages landowners to use their property productively, with a “use it or lose it” attitude toward homeowners who don’t pay attention to how their land is being utilized and by whom. Courts recognize easements as a property right earned by the user that attaches to the land and may cause issues when you’re selling the home.
Learn more about legal issues that affect homeownership in our Learning Center.
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