Prescriptive Easements: What Are They?
Andrew Dehan4-minute read
February 15, 2022
Surprises can pop up when you’re trying to buy a home. During the home buying process, you might discover the property you’ve made an offer on has an easement tied to it. Easement rights are associated with owners of adjoining land. Legally speaking, they are a nonpossessory interest in another person’s land that allows the holder of the easement to use the land in a described way.
There are several types of easements. This article will lay out what a prescriptive easement is, how they’re made, whether they’re good or bad and how to avoid them.
What Is A Prescriptive Easement?
A prescriptive easement, also called an “easement by prescription,” is a legal situation that allows a person to access property that is owned by someone else for very specific reasons. Easements by prescription specifically occur when the individual continually and openly uses a portion of another person’s property without the permission of the owner.
This most frequently happens in rural areas, when a landowner fails to notice their property being used. One example of an easement by prescription 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 a legal right to use the land. The length of time varies widely by state.
If an easement is recognized, the offending neighbor owns what is referred to as the dominant estate. The dominant estate owner is the only one who can terminate the easement, unless the original owner of the property, known as the servient estate owner, sues the dominant estate owner. Even then, the claimant can lose the lawsuit.
Easements by prescription are just one example of easement appurtenant, which occurs when two properties are connected as dominant and servient estates. The dominant estate owner is the one with the easement while the servient estate owner is the one whose land is being encroached upon by the dominant owner.
How Are Prescriptive Easements Made?
Prescriptive easements are made when someone uses someone else’s land for a reason, whether knowingly or not. There are several criteria that must be met for a prescriptive easement to be made. The land use must be:
- Adverse and hostile: Someone’s using another person’s land without the authority to. If the landowner is aware of the adverse use and allows it, no prescriptive easement can occur.
- Open and notorious: The occupier is not hiding their land use. It’s out in the open for all to see.
- Exclusive: Only the trespasser is possessing and using the land, not the owner.
- Uninterrupted: No gap in the use of the real property is allowed.
- Continued: The trespasser must occupy the land for the length of time determined by the state.
All these factors must be met for a prescriptive easement to be granted.
Are Prescriptive Easements Good or Bad?
Prescriptive easements serve a purpose. They reduce potential tension between neighbors. Say you use a long driveway to access your home, and this driveway crosses over your neighbor’s parcel. A prescriptive easement lets you still use the property.
However, if you’re the landowner or buying a home with a prescriptive easement, it may not be something you want. When the property is sold, the easement is still in place. It can lower the property value, which can be good for you when you buy the property, but bad for you if you try to sell it.
Prescriptive Easement Vs. Adverse Possession
Prescriptive easement and adverse possession have many similarities. They’re granted in similar ways, with a trespasser moving on to the property and using it as their own.
The difference is ownership. With prescriptive easement, the trespasser is given the right to use the land, but not ownership of the land, and thereby become the easement holder. In a case of adverse possession, the trespasser is awarded ownership of the land and must pay the taxes on it.
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. This requires that you notice the continuous use and contest it. This method is the most confrontational and may deteriorate relationships with your neighbors.
The other way to avoid a prescriptive easement is to give the trespasser consent to use the property. In this case, this avoids the adverse and hostile criteria, removing any concern of establishing a prescriptive easement.
Even if the owner is unaware of a specific threat, they can issue a general consent to unknown users. An example of this is by posting a sign that says “Private property. Permission to cross land, but revocable at any time.”
The Bottom Line
Prescriptive easements serve a purpose. They encourage landowners to use their property productively, and if a trespassing neighbor is using it openly, it allows the neighbor to establish easement ownership, or a right to the property use.
Whether a prescriptive easement is on a property is something you need to be aware of when buying a home. Consult your real estate agent about whether this is something to consider.
Check out more home buying articles in the Rocket Mortgage® Learning Center.
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