What are prescriptive easements and are they a deal breaker?

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One of the last steps you’ll take when you’re in the process of buying a home is the title search. It may seem like a mere formality, but this step examines public records to confirm a property’s rightful, legal owner. Most title searches come up completely clean, but problems revealed by a title search – such as a prescriptive easement – can sideline the sale or purchase of a home.

The easement doesn’t have to be something that people would even give a second thought. It could be something as simple as children using your yard as a shortcut home from the bus stop. It just needs to be disclosed so everyone knows what they’re getting.

An easement by prescription is a legal right earned over a long period of time by a trespasser to use someone else’s land. That can sound more alarming than the reality. We’ll explain how prescriptive easements work, their effect on homeownership, and how to deal with them.

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 they don’t own in a way that’s referred to as open, adverse, and continuous.

For a prescriptive easement to be created, the trespasser must usually continue to use the property for many years as defined by state law.

This type of easement doesn't affect your ownership of the property, but it could affect your right to fully enjoy, use, or build on it. Since it grants someone else legal access to a portion of your land, it could also potentially reduce your property value.

Prescriptive easements differ from other types of easements. For example, an easement by necessity is granted when a neighbor absolutely needs to cross your land to access a public road, and an express easement is created with the explicit permission of the property owner. Because an easement by prescription is created without permission, it directly impacts your property rights.

How an easement by prescription works

Courts don't establish these rights lightly. Here are some of the key legal requirements of prescriptive easements:

• Open and notorious: The use of the property can't be kept secret. If the owner was aware that the land was being used, and the community seemed to be aware of the practice year in and year out, then the use of the property was notorious.
• Continuous: The trespasser must use the property consistently over a set period. Although they don't necessarily need to use the land every single day, they need to use it regularly for their own purposes.
• Adverse or hostile: Historically, the law considers any nonpermissive use of property by a trespasser to be an adverse or hostile use.

The definition of continuous use varies from state to state, but it typically ranges from 5 – 20 years.

It's important to note that prescriptive easements aren’t automatic. They must generally be formally recognized through a court order, and the burden of proof rests entirely on the person claiming the prescriptive easement to prove it.

Let’s consider the example of a neighbor openly taking a shortcut across the land of another to get to a lake. While there was no explicit request for permission, it’s been this way for as long as anyone can remember.

If a new homeowner buys the property and builds a fence restricting the neighbor’s access, the neighbor could claim a prescriptive easement in court.

Prescriptive easement vs. adverse possession: What’s the difference?

A prescriptive easement is a property right granted for a limited, specific purpose. A successful claim of adverse possession grants actual ownership to the property if unchallenged. Basically, the trespasser gains ownership by acting as if they own the place over a long period. Rather than passing through, they use the land as their own.

This most frequently happens in rural areas, when a landowner fails to notice their property being used. One example of adverse possession is a neighbor constructing a fence on the land. If this encroachment isn’t noticed or addressed for some time, the neighbor may establish their ownership of the land they’ve been encroaching on.

How to prevent or resolve prescriptive easements

Avoiding a prescriptive easement is easier than removing an established prescriptive easement. If you're a homeowner or buying a new property, you can use these five strategies to prevent or resolve an easement:

1. Identify potential issues early on. Check public records and get a property survey before purchasing a home to spot any boundary disputes or signs of unauthorized use.
2. Prevent others from using your property. The easiest way to avoid a prescriptive easement is to stop the trespasser from ever using your property to begin with. You can put up a fence or a gate to block access and prevent a claim from ever developing.
3. Grant explicit permission. 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.
4. Get professional support. Reach out to a surveyor to help you understand local land use rights and verify your property lines.
5. Take legal action. If someone ignores your warnings and continues to trespass, you may need to file a lawsuit to legally stop them before they meet the continuous use time frame. You may seek the counsel of a real estate attorney.

Should you buy a house with a prescriptive easement?

A prescriptive easement can present a few concerns, such as impacting your future property value and liability. 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.

Purchasing liability insurance coverage can be an effective protection for your finances in the event of a future accident. This can often be purchased as part of your homeowners insurance coverage. Reach out to your carrier or insurance agent.

Because prescriptive easements become attached to the deed, the property owner can’t prevent a person’s right to use the easement after it’s been established. This means that if you were planning to put up a garage or pool where the easement was, you can’t do it.

On the bright side, you can use the easement to negotiate a better deal. You may be able to leverage the discovery of an easement to negotiate a price adjustment or another concession from the seller.

Ultimately, an easement doesn't always have to be a deal-breaker. If the intrusion on your property seems minimal, it might not be a concern going forward. It's important to consider all the factors before you decide to buy a house.

Are prescriptive easements good or bad?

Whether prescriptive easements are good or bad depends entirely on the perspective of the homeowner. If you find that the existence of an easement makes the property unattractive, you’ll be glad you learned about it before buying the home. But even if the easement does no harm to the property, knowing about it ahead of time can help you with a couple of key considerations.

Purchase price

You may be able to use the easement to negotiate a last-minute price adjustment or another concession from the seller. Of course, if you sell the property later on, you may be asked for a similar discount.

Liability

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 want to consider additional insurance coverage for general liability in the event a trespasser suffers an injury on your property.

FAQ about prescriptive easements

Property laws can be complex. We've compiled a list of answers to some of the most frequently asked questions about prescriptive easements.

Can you lose land to prescriptive easement?

No, you will not lose ownership of your land. While a prescriptive easement could give someone else legal access to your property, it doesn’t give them ownership of the land.

What is the most common type of easement?

There are several types of easements, including easements by necessity and express easements. However, the most common is a utility easement, which allows utility companies to access your property to maintain infrastructure like power lines or water pipes.

How long does it take to establish a prescriptive easement?

The statutory period to establish a prescriptive easement varies by state. Typically, it takes 5 – 20 years of continuous use to legally establish an easement by prescription.

Can a property owner block a prescriptive easement?

A property owner can only block a prescriptive easement if it hasn’t been legally established yet. An owner could prevent an easement by putting up a fence, posting "No Trespassing" signs, or explicitly granting revocable permission to use the land.

Are prescriptive easements permanent?

Prescriptive easements are often permanent and attach to the deed, but they could be terminated in some situations. For example, one would be terminated if the owner bought out the person who was using the easement, creating a merger into one entity. Abandonment of easement rights also happens from time to time.

The bottom line: A prescriptive easement could affect your rights to your own property

Real property law encourages landowners to use their property productively and has a “use-it-or-lose-it” attitude toward homeowners who don’t pay attention to how their land is being utilized and by whom. A prescriptive easement allows someone else to use your property, which can impact your privacy, future plans, and even your property value. Weigh all your home buying considerations.

Ready to take the next step toward homeownership? Start the mortgage application process with Rocket Mortgage today.

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